The Perils of Scalia

[Glenn E. Meyer]

We seemingly rejoiced over Heller. However, was it a definitive game changer?

I know we have several AWB threads running but this is a different take. Shotgun Joe Biden has said this over the failure of the AWB this time:

"I'm still pushing that it pass — we are still pushing that it pass. The same thing was told to me when the first assault weapons ban in '94 was attached to the Biden crime bill, that it couldn't possibly pass. It was declared dead several times.

"I believe that the vast majority of the American people agree with us, the vast majority of gun owners agree with us, that military-style assault weapons are — these are weapons of war; they don't belong in the street.

"And [in] the recent decision declaring the right of someone to own a weapon in their home for self-protection, Justice [Antonin] Scalia acknowledged that you can constitutionally ban certain types of weapons. And so I haven't given up on this." http://www.npr.org/blogs/itsallpoli...ration-still-fighting-for-assault-weapons-ban

The NY and CO laws and others in the works are clearly playing Scalia to argue (if they buy Heller - which four on the SCOTUS don't), that a double barrel fired in the air is the Constitutional way to go.

If, hopefully, these new state laws get to the court in real time, will Scalia and company realize that they cannot dance around the issue this time?

 

[speedrrracer]

Yes, it was a game-changer. Among many, many other things, it's why you don't see 10,000 bills in 50 separate legislatures trying to ban handguns.

No, Scalia et al will still dance as much as possible, but you'll need to put forth a specific case for any answer more specific than that.

 

[Isk]

The real pickle is that we don't know exactly what Scalia meant when he threw in that line about reasonable restrictions. It's possible Scalia meant merely that civilians could be denied the possession of rocket-launchers, mortars and mustard gas. It's also possible, though less likely, that he/the SCOTUS thinks the citizenry can be denied so-called "assault weapons".

However, the underlying premise of the Heller case was that you couldn't deny gun ownership (of some kind), and it certainly implied the reasons why you couldn't do that (self defence, constitutional right, heightened scrutiny, etc.). My personal WAG on this matter is that the SCOTUS will drop the hammer on the next case it takes where a government entity has reigned in the RKBA. Scalia hates it when his words and intent are misused for political purposes.

 

[JimDandy]

I don't think they danced around the issue, so much as tried to head off any challenges to NFA, GCA, and FOPA.

 

[Frank Ettin]

I also agree it was a game changer. Until Heller under the weight of authority the Second Amendment described a collective right. Heller fixed that.

Then until McDonald, the Second Amendment did not apply to the States (Cruikshank). McDonald fixed that.

So now we have a clear individual right application against both the federal government and the States. Those cases don't, and couldn't, fix everything, and they won't get rid of all gun control, nor stop all future attempts at gun control.

But they provide us with much more powerful judicial tools than we had a few years ago.

 

[zukiphile]

If, hopefully, these new state laws get to the court in real time, will Scalia and company realize that they cannot dance around the issue this time?

The majority had good reason to dance. Aside from the dancing required in order to get a majority, I do not believe it would have been politically realistic to set forth a judicial decision that would wipe away the NFA and subsequent Congressional acts.

Until and unless someone figures out how to clone Clarence Thomas eight times and get all eight clones nominated and confirmed, I do not see Second Amendment jurisprudence clarifying into "what part of "shall not be infringed" do you not understand?".

Lets pray for the health of our Supreme Court conservatives.

Prudence would require us to do even more than that. Justices will retire, die and be replaced.

But they provide us with much more powerful judicial tools than we had a few years ago.

Indeed. If anyone doubts the power of the decision, he need only imagine what the landscape would look like now if the decision had gone the other way.

However, that Heller was an important and substantial victory should not suggest to anyone that it is a permanent victory. The Heller victory will not last unless the people we elect to federal government want to nominate and confirm justices who will protect that victory. The Supreme Court has effectively reversed itself before, and there is no reason to believe that after a minor change in voting arithmetic the Heller minority would refrain from overturning the decision.

The Supreme Court and the Constitution insulate us from the worst of representative government, but they cannot prevent it over time.

 

[Maxb49]

It is important to remember and recognize the common law right to self defense, and to bear arms for self defense. These legal rights pre-date the existence of the Constitution and can be considered as rights enshrined within the Ninth Amendment. This argument will become more and more important as the makeup of the court changes in the coming years.

 

[lilguy]

The 7th circuit ordered Illinois to get going and pass a CCW law in 6 months or the state becomes constitutional carry. Why, because SCOTUS say its an individual right. You bet it meant something. Our general assembly is turning its self inside out try to work through this now.

 

[Glenn E. Meyer]

Not being an expert on these matters, if an unfriendly court came to be - might they use the precedent of reasonable restrictions to support the bans on types of guns? Say that Biden's shotgun and perhaps a SW Model 10 is the law of the land, so to speak.

That video by progun scholar Joyce Malcom would argue otherwise.

http://www.pbs.org/newshour/rundown...understood-by-a-second-amendment-scholar.html

The common usage of semi handguns and purchase of so many AR types argue for common usage. But reasonable might be said to correct for the aberrations of these guns being in circulation. Perhaps not comparable, but the common usage of alcohol and marijuana have led to bans and usage in various versions.

Granted those aren't in the Constitution now but I can see a Kagan, Sotomayor court, etc. not buying that argument of common usage as those semis and EBRS are not reasonable, even if common.

 

[Aguila Blanca]

The NY and CO laws and others in the works are clearly playing Scalia to argue (if they buy Heller - which four on the SCOTUS don't), that a double barrel fired in the air is the Constitutional way to go.

If, hopefully, these new state laws get to the court in real time, will Scalia and company realize that they cannot dance around the issue this time?

In Heller, Mr. Justice Scalia wrote the following:

2. Like most rights, the Second Amendment right is not unlimited.
...
Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

Like most rights, the right secured by the Second Amendment is not unlimited.
...
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson,Works of the Honourable James Wilson 79 (1804); J.Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgmentof the Criminal Law of the United States 64 (1847); F.Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Scalia was very clear that the RKBA protects those weapons "in common use at the time." And there should be no argument that the weapons in most common use at this time are semi-automatic pistols and AR-15-type semi-automatic rifles with magazines holding more than ten rounds. On this basis, any ban on either AR-15 type weapons or "high capacity feeding devices" should be found to be in conflict with Heller.

 

[natman]

"And [in] the recent decision declaring the right of someone to own a weapon in their home for self-protection, Justice [Antonin] Scalia acknowledged that you can constitutionally ban certain types of weapons. And so I haven't given up on this."

This is the typical practice of taking a couple of words completely out of context and then spinning a different meaning out of them. (Remember all the fuss about the word "militia"?) Let's take a look at what Scalia actually wrote:

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

So what weapons can be restricted? "Dangerous and unusual weapons" (i.e. NFA) that are NOT “in common use at the time”.

If an AR isn't “in common use at the time” I don't know what is.

 

[2damnold4this]

I don't think the Court wants to put itself in the position where it spells out how many rounds can be in a magazine or whether a particular firearm can be banned. What the Court has done is tell us it will apply at least a level of intermediate scrutiny to laws that restrict the 2nd Amendment.

 

[elDiabloLoco]

200 years of emanating penumbras obscure what appears obvious to those of us not immersed in the nuances of a law school education in JD-dance and parsing-the-meaning-of-IS. i.e.....A lawyer I ain't.

The individuals RKBA is not just about: spitballs, slingshots, pellet guns for ravens in the crops, deer rifles for meat on the table, or even derringers for defense against either ill-tempered card sharps with knives in their pocket or divorce lawyers. RKBA is predominately about an individual being armed and able to form a militia against armies/soldiers foreign or domestic.

So the least common denominator is the weapon in the hands of grunt in an ordinary squad of infantrymen. The weapon in the hands of the infantryman is what is "in common use at the time". The failure to acknowledge this obvious and simple interpretation is crucial. 2A was not crafted for squirrel hunters, but for Redcoat hunters.

so this is completely bogus:

"I believe that the vast majority of the American people agree with us, the vast majority of gun owners agree with us, that military-style assault weapons are — these are weapons of war; they don't belong in the street."

The fact that they are weapons of war in common use is exactly why they SHOULD BE constitutionally protected and widely available for purchase. ["they" = fully automatic select fire infantry combat rifles] While restricting full auto sounds reasonable to most.....reasonable is not the same as constitutional. A point which is made clear on an all too frequent basis by very nearly every major judicial ruling on a daily basis.

In 1776 that was some form of musket.

In 1934 that was a bolt action springfield/Mauser/Enfield. NFA is fine.

Transition to the semi auto starting around 1936. NFA still fine

Transition to the select fire full auto....legality of NFA is now carefully ignored for 50 years.

Bringing it to current day, the argument should be that select fire arms are now "in common use at the time" by the infantry. So select fire weapons are the present day bare minimum an individual has the right to own under 2A. The 1934 NFA is broken with respect to hand carried full automatic capable rifles.

If it is standard issue to an individual infantry soldier, it is good enough for your closet and mine. Full automatic rifles - obviously are constitutionally protected, as they are current issue to armed forces foreign and domestic.
Full automatic pistols? Not currently standard issue, can remain NFA. Ditto heavy machine guns, mortars, etc.

Doesn't seem to be the cause problems for the Swiss or Israeli's, where home closets are full of "weapons of war".

I don't particularly want one, but the fact that my neighbor might wish to own one is not going to make me loose sleep.

So if the gun grabberz want to argue that point, there should be a reasoned push-back that really hurts. Simply to make them re-consider the wisdom of opening a can of worms that even the pro gun lobby is hesitant to consider.

Be really fun to watch the irrational reaction of the grabberz too. Might get to see it here!

I think Scalia nailed it as far as he went. But I ain't no edumicated Juris Doctor.

Unwashed Mass

 

[Spats McGee]

First of all, I don't believe for a moment that "the vast majority of Americans support" the various gun control bills being proposed.

Second, even if I did . . . well, there's this funny thing about rights. You're not supposed to vote on them. The 2A doesn't say ". . . . shall not be infringed, except by popular vote." The 1A doesn't say "Congress shall pass no law respecting the establishment of religion, except by popular vote." The BoR, in large part, protects the individual from mob rule.

 

[JimDandy]

I'd like to point out a niggling point Spats. I believe a lot of people DO support "Universal Background Checks" and I think very few of those people have read or have any idea of what S.374 itself does. So every time on of these polls asks a generic do you support question, it's a slanted and biased question.

 

[Frank Ettin]

...Doesn't seem to be the cause problems for the Swiss or Israeli's, where home closets are full of "weapons of war"...

And I need to point out that this is a bogus argument.

The Swiss and Israelis with such "weapons of war" (in limited numbers) in their closets have completed their compulsory military service, have possessions of certain weapons to fulfill their responsibilities in the reserves and remain subject to military orders in connection with those weapons.

It does neither our interests nor the RKBA to make extravagant arguments based on faulty information. It seriously damages our credibility.

Let's stick to the facts.

 

[elDiabloLoco]

It does neither our interests nor the RKBA to make extravagant arguments based on faulty information. It seriously damages our credibility.

Let's stick to the facts.

Which part about there being weapons in closets in those nations is non factual? Is the matter of the actual owner being the government of issue more relevant than their being kept/possessed by civilians(who remain subject to military recall)?

Not sure what exactly is extravagant either, but I'll clarify as
"Doesn't seem to be the cause problems for the Swiss or Israeli's, where "weapons of war" are commonly closeted in private residences".

 

[Evan Thomas]

One fairly large difference, at least in Switzerland, is that the ammunition for those "closeted weapons of war" (which are kept only by younger men who have completed compulsory service but are still on reserve) is stored in a central arsenal, not with the weapons. When the reservists' terms of reserve service are up, they may keep the weapons, but they must be licensed in the same way as other privately held firearms.
(Source)

 

[Frank Ettin]

...Which part about there being weapons in closets in those nations is non factual? Is the matter of the actual owner being the government of issue more relevant than their being kept/possessed by civilians(who remain subject to military recall)?...

Let's not drift of off topic.

What's not factual is the implication that those Swiss or Israelis with the weapons in their closets are just plain folk like the rest of us. Their cultures are different, the circumstances of maintaining those weapons are different, the; training of those Swiss and Israelis with those weapons are different, the rules that are followed for keeping those weapons are different from those of most folks in the United States who have a number of AR15s in gun safes or closets. The situations are not at all comparable.

Among other things, if you were Swiss you'd be required to qualify with your service rifle every three years. And Israelis are actually subject to fairly onerous gun control rules.

 

[elDiabloLoco]

My actual implication is that the weapons are not the issue. Gun control is about people control. Weapons never cause problems unless acted upon. No gun ever springs forth spontaneously from anyone's closet anywhere, so its rate of fire and magazine capacity are irrelevant to RKBA.

The problem is that so much ground in the 2A arguments has already been ceded that most all of the restrictions in place are unconstitutional in any plain language reading.

The 2A doesn't mention my level of training anywhere.........maybe your constitution has more penumbras emanating. The RKBA does not imply a proper level of the training, intelligence, or wisdom required. To do so is an obvious infringement for many of us lacking legal educations to train us to think otherwise.

But since the RKBA has already been infringed to the point where we only recently have decided that it does indeed apply to individuals, and limits them to only weapons in 'common use', the proper approach to the argument is not to cede further ground to those seeking to infringe, but to promote arguments that contradict their position.

To that end, you may find an argument that fully automatic weapons are in "common use" unreasonable. But ceding that argument can only be a further erosion on an issue that is already compromised far beyond its easily understandable plain language original intent. I think that it is time to move the flag far beyond what is acceptable to the opposition when the underlying argument is so readily at hand.

Society will not collapse if fully automatic rifles are owned by private citizens any more than it did when concealed carry became a reality. Nor do the Swiss and Israeli's have a societal collapse due to their citizens possession of battle implements.

Arguing that fully automatic rifles are "in common use at the time" is an easy argument to make......just call the Quartermaster in to testify as to what was issued to the troops.

Timidity is not a useful negotiation stratagem, and enough liberty has already been squandered to those who would dictate their own morality.