SCOTUS musings

[Glenn E. Meyer]

It has been debated that Heller contained language that had a double edged sword and perhaps a serious flaw or two or more:

1. The emphasis on self-defense downplayed the defense against tyranny
2. The language enabled the state bans on weapons and magazines
3. It supported the idea of gun control in general within limits (what are the limits?).

This view offends some who think the language is brilliant and despite the misinterpretation of the language by lower courts to support bans, that the language allows such malicious misinterpretation isn't problem.

Anyway, here's a story about John Paul Stevens that discusses how problematic language was part of Heller. Stevens says Heller was one the greatest SCOTUS mistakes:

https://www.nytimes.com/2018/11/26/us/politics/john-paul-stevens-memoir.html

A relevant quote:

He said he had taken an extraordinary step in trying to head off the decision. Five weeks before Justice Antonin Scalia circulated his draft opinion for the majority, Justice Stevens sent around a draft of what he called his probable dissent. He said he could not recall ever having done anything like that.

“I thought I should give it every effort to switch the case before it was too late,” he said.

The effort failed. But Justice Stevens wrote that he helped persuade Justice Anthony M. Kennedy, who was in the majority, to ask for “some important changes” to Justice Scalia’s opinion. A passage in the opinion, which Justice Scalia had plainly added to secure a fifth vote, said the decision “should not be taken to cast doubt” on many kinds of gun control laws.

I opine that we see that justices have their social position and then use precedent and compromise to instantiate their social views. This offends some views of the law as seen in controversy over Trump's comments on the political nature of the courts.

In the Kavanuagh hearings, to continue the risk of language, we see the term 'common usage'. Is this another trap? In the weapons bans, Kavanaugh claimed common usage might protect some things but Diane argues that usage can be used to support bans. That ARs are physically common doesn't mean they are used. So does the danger of such weapons, if not 'used' overwhelm their simple existence in numbers in private hands (maybe 12 million)?

An interesting take is found on this issue in the current issue of SWAT (1/19) in an Enemy at the Gate column by Kurt Hofman entitled:

Weapons in 'Common Use'.

He discusses this issue and two interesting paragraphs are:

In the Heller ruling, late Justice Antonin Scalia wrote that one of the reasons the handgun ban was unconstitutional is that handguns are “commonly used” for self-defense in the United States. He further went on to reason that possession of arms commonly used for legal purposes by private citizens in the U.S. is protected by the Second Amendment. I would argue that the arms “in common use” by private citizens at the time the Constitution was written were indistinguishable from those issued to the infantry of any nation’s military at the time, which would really have up-set Feinstein, but Scalia, sadly, did not.
…
Personally, I believe that tying Constitutional protection of the private ownership of a given class of arms to their “common use” is one of the worst aspects of the Heller ruling, because doing so would apparently mean that any brand-new class of arms can be banned, as long as it is done before those arms have a chance to become common. Besides, how can one justify determining fundamental human rights on the basis of a popularity contest?

Something to think about when we think a positive SCOTUS decision and the language used doesn't have unintended (or perhaps evilly intended consequences).

Buy the issue of SWAT, by the way!

And the beat goes on:

https://www.summitdaily.com/news/re...ine-ban-survived-yet-another-court-challenge/

Reasonable self-defense allows bans, it seems.

 

[Aguila Blanca]

It has been debated that Heller contained language that had a double edged sword and perhaps a serious flaw or two or more:

1. The emphasis on self-defense downplayed the defense against tyranny
2. The language enabled the state bans on weapons and magazines
3. It supported the idea of gun control in general within limits (what are the limits?).

This view offends some who think the language is brilliant and despite the misinterpretation of the language by lower courts to support bans, that the language allows such malicious misinterpretation isn't problem.

The pedant in me feels constrained to point out that the "brilliant" language allows misinterpretation only because judges from the district and appellate levels are willing to completely ignore grammar and intent in their efforts to advance their anti-gun agendas. I don't like the language, I have always been of the opinion that it was included in order to keep Kennedy on the pro-2A majority, and it's interesting that this article confirms that.

That said, it would be a stretch to say the language lends itself to misinterpretation. It does that only when lower courts clearly don't want to do their jobs. The problematic phrase, IMHO, is the one that says existing anti-gun gun laws are "presumptively lawful." This does not say that all existing gun control laws are lawful under the Constitution. What it really says is, "We're not talking about or looking at those laws today so, for the moment, we'll presume that they are lawful until each has had its own day in court."

In practice, rather than all those myriad other preexisting, "presumptively lawful" laws being evaluated in their own right, what is happening is that lower courts are adjudicating them as lawful with no examination under the pretext that Heller said they are lawful. I respectfully submit that this is not a "misinterpretation," it's a blatant lie.

 

[Glenn E. Meyer]

Not going to go there. We have this discussion all the time. The reality is that the language is problematic either through malice or misintpretation. If you give your enemy an opening, that's what you have to think about when you write.

If you had to keep Kennedy on board and let in a weakness for that - that's a problem. I know folks don't like that view. Need to do it again?

 

[zukiphile]

It has been debated that Heller contained language that had a double edged sword and perhaps a serious flaw or two or more:

1. The emphasis on self-defense downplayed the defense against tyranny
2. The language enabled the state bans on weapons and magazines
3. It supported the idea of gun control in general within limits (what are the limits?).

I doubt you've read many arguments here that the Heller decision was the perfect and final word in 2d Am. jurisprudence.

1. Self-defense is more congruent with the fact of the case the significance of which was the announcement that the right was is one held by individuals. I don't believe Heller sought a permit for his pistol to defend against tyranny.

2. The language in Heller didn't enable state restrictions since they existed well before Heller.

3. It allowed the idea of the legitimacy of some state and federal restrictions.

It's the thin end of a wedge, and it received a majority.

Not going to go there. We have this discussion all the time. The reality is that the language is problematic either through malice or misintpretation.

Now that you've announced what is real and where discussion can go, you can expect a lively and informative discussion.

 

[Bartholomew Roberts]

Not going to go there. We have this discussion all the time. The reality is that the language is problematic either through malice or misintpretation. If you give your enemy an opening, that's what you have to think about when you write.

Well, you are dealing with someone who found a “collective” right in the relatively brief, straightforward language of the Second Amendment. If there is language you can use that can’t be misinterpreted via malice or otherwise, I can’t imagine what it is.

You have to write an opinion. If it wipes out seven decades of federal firearm law, it isn’t going to be the majority opinion. So, you are necessarily going to have to write something that might be problematic later. If you don’t survive the gunfight, you don’t have to worry about how your trial might have gone.

Honestly though, I don’t think it is possible to even write a principled, one-man dissent, Thomas-style, where you just lay it out there as straight as you can and still not have it willfully misinterpreted by some lawyer.

 

[Don P]

All I'll add to this is, it's a shame that the founding fathers cannot return to explain to all 535 in congress as well as those who sit on the SCOTUS bench as well as the Pres. and VP what the 2 ND amendment means as in its intended purpose.

 

[Aguila Blanca]

All I'll add to this is, it's a shame that the founding fathers cannot return to explain to all 535 in congress as well as those who sit on the SCOTUS bench as well as the Pres. and VP what the 2 ND amendment means as in its intended purpose.

Many of the Founders left extensive writings on the meaning and intent of the various provisions that make up the Bill of Rights. If I recall correctly (always a question at my age), Justice Scalia cited some of those historical writings in his Heller decision. IMHO it really boils down to intellectual honesty. The writings are there for those who care about being true to the intent. The gun grabbers aren't at all interested in the intent, other than to bend, fold, spindle and mutilate it beyond recognition. That's the problem.

 

[Glenn E. Meyer]

What do you all think of Hofman's risk analysis of common usage? I'd be interested in a take on that.

Self-defense alone can be used to support weapons type bans in discussion and court decisions. Military style weapons are not necessary if ' five is enough' as sometimes mentioned here.

 

[zukiphile]

Honestly though, I don’t think it is possible to even write a principled, one-man dissent, Thomas-style, where you just lay it out there as straight as you can and still not have it willfully misinterpreted by some lawyer.

The effect is particularly corrosive where that willful misinterpretation is the work not of an advocate for a party, but a court engaging in result oriented jurisprudence that shows no due deference to text. As Gura notes in his cert petition last week:

The panel found that current handgun access is “ample” and that the delays inherent are “de minimis.” App. 20a. Would it have made that determination if a state had banned interstate contraceptive sales?

The burden [would be], of course, not as great as that under a total ban on distribution. Nevertheless, the restriction of distribution channels to a small
fraction of the total number of possible retail outlets renders contraceptive
devices considerably less accessible to the public, reduces the
opportunity for privacy of selection and purchase, and lessens the possibility of price competition. Carey, 431 U.S. at 689 (citation and footnotes omitted).


Nor was it logical to suppose that shippers and in-state FFLs would provide their services free of charge. The harm may be particularly acute in the District, but every handgun sale is burdened by the lack of a na-
tional retail market.

***

The revolt against Heller has entered its second decade. The divisions are stark. There is nothing to be gained by further percolation in the lower courts. Ten years of rational basis masquerading as intermediate scrutiny are now turning into rational basis masquerading as strict s
crutiny—when it does not appear undisguised, on judicial assertions that Second Amendment burdens are insignificant. Only rarely do heightened scrutiny or categorical text-and-history analyses seriously test compliance with the Second Amendment. The damage to confidence in the rule of law itself, not merely to Second Amendment rights, is significant. The public may
not always be conversant in the finer academic points of constitutional law, but it knows when rights are illusory. And in time, “watering [strict scrutiny] down here w[ill] subvert its rigor in the other fields in which it is applied.” Employment Div., Dept. of Human Resources of Or. v. Smith, 494 U.S. 872, 888 (1990).

p 33-35.

https://www.supremecourt.gov/DocketPDF/18/18-663/72489/20181119123335039_3-petition.pdf

 

[Bartholomew Roberts]

What do you all think of Hofman's risk analysis of common usage? I'd be interested in a take on that.

Well, he’s not wrong. It creates a great incentive for government to stifle technological innovation in its cradle (ban it before it becomes common!)

And the rationale has kind of a chicken or the egg quality to it as well. If handguns had been included in the NFA as originally intended, would Heller have protected handguns? I’m betting a $200 transfer tax from 1934-2007 would have made legally owned handguns a lot less common.

If we applied the Heller/common usage test to machineguns circa 1934, would the NFA withstand scrutiny?

Basically, I think Scalia was looking for historical precedent to show what types of arms are protected and he had already decided he wasn’t going to overturn the NFA. If we are to believe Stevens, he couldn’t have if he had wanted to. So he has to come up with some test that explains why one firearm is prohibited but another is protected by the Second Amendment. And being Scalia, that test has to be grounded in legal text, history, and/or tradition.

 

[Brian Pfleuger]

And the rationale has kind of a chicken or the egg quality to it as well. If handguns had been included in the NFA as originally intended, would Heller have protected handguns? I’m betting a $200 transfer tax from 1934-2007 would have made legally owned handguns a lot less common.

If we applied the Heller/common usage test to machineguns circa 1934, would the NFA withstand scrutiny?

I wish that concept was talked about more, I've been raising that point for several years.

The "long standing" test is equally troubling to me... ban phasers today... by the time they're invented the ban will be legal because it is both "long standing" and they're "not in common use", and can never be, since they're banned?

 

[Glenn E. Meyer]

Might want to consider how

https://thefiringline.com/forums/showthread.php?t=599302

and a bump stock ban and turn in interacts with common usage and whether if this got to the current court, would they support the ban?

But let's do that in the above thread, please.

 

[Wag]

All through this thread, I can't shake the "common use" concept in the discussion from my mind. It sounds so ill-considered. What makes something fall out of common use?

If I take a FEG PA-63 to the range, I almost NEVER see another one out there so does that mean the pistol is not common use any more and I should give it up? As far as that goes, I don't get it out very much at all so that could mean that it's not even common use for ME.

Extend that to any product and now we're talking about obsolescence being interpreted as falling out of common use. Cars, clothes, my toaster oven that I had 30 years ago, etc.

And how far back to we go? Current generation of about 20 to 25 years? 50 or 100 years? I keep reading about people who believe that The Second Amendment was written to apply to muzzle loading guns only, as if THEY were considered "common use" but nothing after that should apply. It's all about opinion, of course. And opinions are formed in so many various ways, we could have a complete forum to take up the subject of opinions.

The other thing that has bugged me about courts and especially SCOTUS is that they are supposed to interpret law, not make law. Additionally, SCOTUS is tasked with evaluating the constitutionality of laws. Ergo, "that law made by D.C. is not constitutionally valid, get rid of it." Although, there's a lot of merit with making sure they explain why some lawmaking body shouldn't try their hand at skirting a ruling by rewriting a law into something "new" SCOTUS should never try to overstep their bounds.

It's a fine line, methinks and juggling it is a tough thing to do. I, too, have issues with adding language to sway an individuals vote because it compromises the integrity of the ruling but there we have it. Now we have a bad ruling we have to live with.

Nevertheless, SCOTUS does find itself in the unenviable position of having to fix problems caused because of the INaction of our chicken-livered legislative bodies who are too afraid of making a decision that will get them unelected. Including the federal lawmakers.

My opinion, of course. And obviously, I'm no legal expert so I want things to be simple.

--Wag--

 

[Brownstone322]

All through this thread, I can't shake the "common use" concept in the discussion from my mind. It sounds so ill-considered. What makes something fall out of common use?

If I take a FEG PA-63 to the range, I almost NEVER see another one out there so does that mean the pistol is not common use any more and I should give it up? As far as that goes, I don't get it out very much at all so that could mean that it's not even common use for ME.

This is a logic exercise. Heller does not tell us what weapons should be restricted; it tells us which are protected: "those in common use for lawful purposes." Just because something isn't protected doesn't make it illegal.

In the worst case this would mean that you have a weapon that's not constitutionally protected. That doesn't mean you should "give it up"; if there's no law against it, there's no issue.

Further, the precedent is referring to classes of weapons, not model numbers. The FÉG PA-63 looks like a another semi-automatic pistol to me. It's every bit as protected as a Glock 19.

 

[Aguila Blanca]

Further, the precedent is referring to classes of weapons, not model numbers. The FÉG PA-63 looks like a another semi-automatic pistol to me. It's every bit as protected as a Glock 19.

But several states have prohibited firearms with a magazine capacity greater than 10 rounds and, so far, the lower federal courts have not ruled this to be an unconstitutional infringement despite the fact that Glocks and other brands with "high capacity ammunition feeding devices" are clearly in common use. These decisions appear to differentiate between the firearm and the magazine, regardless of the fact that the firearm was designed with the specific intent of having a capacity greater than 10 rounds.

 

[Bartholomew Roberts]

Clearly, the common use test is subject to abuse. The recent attempt by a politician to argue that mere possession isn’t enough to establish common use; but that it must also be demonstrated the firearm is regularly used is one example.

And then there’s the decision of several courts to basically say “Well, there have been 300 million guns made and that gun only makes up 20 million of them, so not common.”

 

[Aguila Blanca]

This could be the ammo makers' dream come true. Think of the guns you have sitting in the gun safe that you rarely shoot, maybe only take them out once a year to clean, and then put them away again. Now we have to actually shoot them on a regular basis so that they are "in common use." How often will it take to qualify as "in common use"? Monthly? Weekly? Who knows?

Stock up now to prepare for the next ammo shortage. You saw it here first ...

 

[RC20]

1. The emphasis on self-defense downplayed the defense against tyranny

That gets sticky (seriously viscous) on a lot of fronts.

The right was descended from English law (granted it was also severely truncated in English law)

Its been established that Automatic Weapons are infringed on and for all practical purposes illegal (cost of the gun and the license alone.....) and certainly not in general possession.

As a modern tyranny would use machine guns, tanks, gas, etc, then to fight said tyranny we also need those same weapons.

In a larger context though, we have Tyranny by other means. The ruling on use of immanent domain to build a hotel being legal.

Clauses in contracts that completely give up your rights for basic services such that you can't even take it to court to win.

Or, no seizure of property without due process and the drug laws allow exactly that.

I may have free speech, but even if I employ it outside the work place to express a political view, I can be fired if my employer disagrees with me.

Tyranny by a 1000 different methods is still tyranny.

 

[RC20]

And then there’s the decision of several courts to basically say “Well, there have been 300 million guns made and that gun only makes up 20 million of them, so not common.”

Or you can slice it, there are 100 million gun owners in a population of 350 million and 20 million of those are high cap magazines.

That really kills the percentage of common.

The reality is that use has been restricted from some time. And States do have rights as well. Somewhere in that mix is a logical compromise as its quite a muddled field.

 

[Aguila Blanca]

The reality is that use has been restricted from some time. And States do have rights as well. Somewhere in that mix is a logical compromise as its quite a muddled field.

States' rights.

But the McDonald case established that the 2nd Amendment applies to the states as well as to the federal government. So what's missing is a few good cases (before an objective, originalist, textualist Supreme Court) that clarifies the extent to which states can regulate (i.e. "infringe") the 2nd Amendment. Justice Scalia opined that the right to keep and bear arms is not unlimited (a point with which I disagree), but neither Heller nor McDonald made any attempt to define where the line is drawn between permissible regulation and unconstitutional infringement.