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“21st Century Assault Weapons And 18th Century Muskets”: Why The Next Supreme Court Is Poised To Roll Back Gun Rights

While Congress remains stymied by Republican opposition to any gun regulations, there are four reasons to think that the court system, and the Supreme Court in particular, may be evolving: Orlando, changes in the Court, and two recent court cases.

Remember that the NRA’s understanding of the Second Amendment is an extremely recent phenomenon. For more than 200 years, the legal and scholarly consensus was that, in the absence of a standing army, the Second Amendment was designed to enable states and localities to maintain a “well-regulated militia” by placing muskets and other weapons in the hands of local citizens.

Then came three decades of conservative political activism, focused on law schools, the National Rifle Association, and conservative think tanks. This effort culminated (but by no means concluded) with the 2008 case of D.C. v. Heller, which the Supreme Court found, for the first time, an individual right to gun ownership in the Second Amendment.

This view is now the dogma of tens of millions of Americans, propped up by an entire industry of selective histories and scholarship that can usually be traced back to the handful of philanthropists who paid for it. Indeed, the preamble of the Second Amendment has been written out of the Constitution to the point where the NRA’s national headquarters has a frieze engraved on a wall bearing only the second clause of the amendment, “the right of the people to bear arms shall not be infringed.”

Despite the fervency with which some hold that belief, however, it is very shaky as a judicial matter—and recent signs suggest it may collapse entirely. First, of course, is the Orlando massacre, the latest mass shooting to horrify America. While the Right has, of course, blamed the shooting solely on Islamic terrorism, it seems clear to most people that it was due to a combination of terrorism, homophobia, the personality of the shooter, and access to guns. Without the AR-15-style rifle, the shooter would likely not have killed 49 people.

The Orlando massacre doesn’t have any formal judicial meaning. But Supreme Court justices are also human beings, and it’s hard to see it not impacting how they view the relationship between 21st century assault weapons and 18th century muskets.

Second, there is the shift in the Court’s own membership. The Heller opinion was written by the late Justice Antonin Scalia for a 5-4 majority. That majority is now gone.

Interestingly, we know next to nothing about how a Justice Merrick Garland might vote on gun control. Contrary to the insinuations of Bill O’Reilly and other conservative talking heads, Judge Garland did not vote to uphold the District of Columbia’s gun law that was ultimately overturned in Heller; he only voted for the entire appeals court to hear the case, rather than just a three-judge panel. (One of the appeals court’s most conservative members voted the same way—but they were outvoted.) We have no clue of his view of the Second Amendment, and his more moderate outlook in general means that anything is possible.

Still, Garland is no Scalia—and if he isn’t confirmed, whoever President Hillary Clinton nominates is likely not to be a Garland-style moderate either. So the pendulum may swing back on gun rights simply as a function of the Court’s membership.

Two lesser-known developments, though, may be even more telling.

The first of these is that the Supreme Court decided not to hear an appeal brought by a challenger to a state’s assault weapons ban, upholding the gun-control law. This may mean many things: maybe a majority of justices think the appeals court got it right, or maybe they don’t see enough of a conflict among the circuit courts, or maybe they think this case isn’t the best test case to take, or maybe the short-handed court is limiting its workload, or who knows—it could be anything.

But at the very least, it means the Court does not see the ban as a horrifyingly unconstitutional travesty that requires immediate judicial remedy. Contrast that with two of the cases still outstanding this year: Texas’s challenge to the Obama administration’s immigration policies, and Texas’s defense of its abortion clinic regulations. The Court not only took these two cases but issued (or upheld) injunctions on the enforcement of the challenged rules.

Not so in the assault weapons ban case.

Finally, there’s a case from the Ninth Circuit Court of Appeals, decided earlier this month, that provides some of the best intellectual rationale for limiting, if not overruling, Heller.

That case, Peruta v. City of San Diego, dealt with California’s strict requirements to obtain a “concealed carry” permit. (They are only available to limited groups of people, such as guards, messengers, hunters, or target shooters.) Do those requirements violate the Second Amendment? The Ninth Circuit, by a vote of 8 to 3, said no.

Writing for the court, Judge William Fletcher wrote an extensively researched originalist opinion worthy of Justice Scalia himself. Expressly avoiding the question of whether the Second Amendment gives citizens a right to carry weapons openly in public (a question left open by Heller as well), Judge Fletcher’s opinion focused on whether there is a Second Amendment right to carry concealed weapons.

To answer the question, he turned Scalia’s logic against him. The Heller opinion refuted the plain meaning of the constitutional text on the grounds that it codified a “pre-existing right” to bear arms for self-defense, not just for use in a militia. (That the opinion was by a self-proclaimed strict constructionist was an irony not lost on liberal commentators.) Thus the question became whether there was a “pre-existing right” (in America or pre-colonial England) to carry a concealed weapon in public.

And the answer was obvious: not in the least. On the contrary, English common law, colonial regulations, and state statutes dating back as far as the year 1299 prohibited carrying a concealed weapon. (That 1299 regulation provided that sheriffs prohibit anyone from “going armed within the realm without the king’s license.”) The masterful opinion cited English laws and opinions from 1299, 1304, 1308, 1328, 1388, 1419, 1444, 1541, 1594, 1613 (“bearing of Weapons covertly… hath ever beene… straitly forbidden”), 1686, 1694, 1716, and 1782; and American state cases and statutes from 1822, 1833, 1840, 1842, 1846, 1850, 1868, 1871, 1875, 1876, 1879, 1885, 1889, 1890, 1891, 1897, and 1899—all of which, save a single outlier (Kentucky, 1822), upheld bans on carrying a concealed weapon even in the face of general rights to own or carry firearms in general.

Applying the Supreme Court’s own methodology, the Ninth Circuit reached the obvious conclusion: whatever the Second Amendment does protect, it does not protect concealed-carry rights. Thus the California law is constitutional.

Along the way, the Ninth Circuit, while bound to respect Heller, seriously limited its application. It would not be logically difficult to extend an individual gun right to a right to concealed carry, but Heller was not a logical opinion; it was an historical one. In its view (similar, incidentally, to the conservative dissents in the same-sex marriage cases), history, not logical reasoning, is what determines whether a right exists.

It’s not hard to see how this use of conservative constitutional logic for a substantively liberal outcome would play out in future cases. Is there a historical right to own an automatic weapon? To amass unlimited amounts of guns and ammo? To bring weapons into schools and sporting events? Of course not.

More generally, if history is to be our guide—as judicial conservatives usually insist—then surely it is appropriate to factor in the quantity of firepower involved, which could enable the government to regulate nearly all contemporary weapons.

Of course, one factor unchanged by these four considerations—Orlando, the Court, the assault weapons case, and Peruta—is the way in which gun rights has become a symbol, for white American conservatives, of the good ol’ days, limited government and exceptionalist American values. Indeed, the logic is often adolescent in nature; if it pisses off the liberals, it must be a good thing. That attitude, combined with the unprecedented gerrymandering of the House of Representatives, makes it unlikely that federal legislative action will come any time soon even though a majority of Americans support it.

But if Orlando has awakened the American public, in a way that Virginia Tech, Colombine, Sandy Hook, Roanoke, and San Bernadino did not, then these judicial changes might provide the avenue for that change to occur. They may not provide the will—but they do provide the way.

 

By: Jay Michaelson, The Daily Beast, June 22, 2016

June 23, 2016 Posted by | 2nd Amendment, Gun Control, National Rifle Association, U. S. Supreme Court | , , , , , , , | Leave a comment

“What About Rights Of Those Killed By Gun Violence”: President Obama Isn’t Taking People’s Guns—But Maybe He Should

President Obama said a lot about guns in his teary press conference Tuesday, but the one thing that he is not saying, despite all the howling from the right, is that he intends to take away Americans’ guns. Yet equally significant is the realization that individual citizens are unwilling to free themselves of the destructive weapons that are wreaking havoc on our society. Numerous Americans care more about their individual freedoms than our collective freedoms, and they are unable to see how these individualistic desires undermine the essential fabric of a democracy.

This democratic fabric includes the Second Amendment, which has been contorted, misinterpreted, and applied in a way that destroys its intended meaning and threatens the safety and stability of our nation. And as the president pointed out on Tuesday, this grotesque emphasis on the Second Amendment impairs other Americans’ ability to freely exercise many of the other 26 amendments.

As President Obama forges a lone path toward gun regulation, we must wonder how we as a society have arrived to a point where “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed” has morphed into allowing individual citizens to possess firearms for their individual protection with little to no concern about the security of a free state.

It is well documented that gun sales and gun-related deaths have increased since Obama came into office, but the Supreme Court’s 2008 decision in District of Columbia v. Heller (PDF), which opened the floodgates and redefined the Second Amendment, rarely receives mention.

The court’s decision in the case went against 70 years of legal interpretations of the Second Amendment that stated in United States v. Miller that the “obvious purpose” of the Second Amendment was to “assure the continuation and render possible the effectiveness of” the state militia, and the Amendment “must be interpreted and applied with that end in view.”

In Heller and then in McDonald v. City of Chicago, the Supreme Court in a pair of 5-4 decisions determined that federal, state, and local governments could not create restrictions that could prevent an individual the right to possess a firearm in the home for self-defense. The intent of the Second Amendment had shifted from allowing citizens to own firearms so that they could band together in an organized and regulated militia run by either local, state, or federal governments to allowing citizens to own guns for their own purposes so long as they fell under the individual’s definition of self-defense.

Not surprisingly, countless Americans purchased more and more firearms to protect themselves from the “inevitable” moment when the government or “Obama” was going to forcefully take their guns away. Not surprisingly a byproduct of this new interpretation of the Second Amendment has been a rise in unregulated militias or American terrorist groups who challenge the authority of federal, state, and local governments. Ammon Bundy and his posse of men who call themselves the Citizens for Constitutional Freedom, who just this week forcefully took over a federal building in Malheur National Wildlife Refuge in Oregon, are just one such iteration of this emboldened unregulated militia movement in America.

The Oath Keepers, formed in 2009, are one of the largest unregulated militia movements in the nation, and regularly you can find them injecting themselves unnecessarily into conflicts. In Ferguson, Missouri, following the death of Michael Brown, Oath Keepers arrived carrying semi-automatic rifles so that they could prevent looters from destroying property, and many of them said that they saw nothing wrong with taking the life of a looter to prevent the destruction of property. They also advocated that Ferguson residents obtain firearms so that they could protect themselves from the police.

Instability, terror, and death are the inevitable outcomes of a heavily armed citizenry, yet in the 1846 case Nunn v. State of Georgia, an integral case that the Supreme Court used in the Heller decision, the state of Georgia—my home state—argued that arming citizens and allowing them to openly carry firearms created a safer environment. And the referencing of this decision only continues the Supreme Court’s idyllic reimagining of America’s Southern states.

Georgia in 1846 was a slave-holding state where African Americans were counted as three-fifths of a person and were not allowed the right to vote. Firearms at this time were regularly used to keep blacks in line and sustain the South’s racist, oppressive society. Additionally, duels were a regular occurrence in the South during this time period. In this volatile environment, carrying a firearm out in the open actually did bring about stability. The reason for this was that carrying a concealed weapon was illegal. Therefore, the assumption within society was that most white men owned or carried a gun, so being able to see everyone’s gun made it less likely that anyone would be killed by a surprise bullet. Additionally, guns could not be removed from the society because they were needed to oppress, intimidate, and terrorize blacks in the state.

This was a society whose infrastructure and logic regarding social stability should no longer be applicable to modern society, yet in recent years it has been to disastrous effect. Democracy and valuing human life were not principles that were celebrated in the pre-Civil War South.

But far from rejecting that old logic, we’ve embraced it, and the application of the South’s antithetical principles have brought instability, danger, and a disregard for human life to rest of the United States. Armed and dangerous and unregulated militias are on the rise, in addition to the numerous lone-wolf attacks that befall schools, offices, shopping centers, and public spaces at a disturbing frequency.

Right now the Second Amendment is being applied in a way that takes away the rights of thousands of Americans each year. The president must address this crisis, and not only to ensure the safety and stability of the American citizens who are threatened by gun violence. He also must do it to preserve the ideals and institutions that govern our society that are being threatened by the archaic notions of stability from a racist and oppressive society and the unregulated militias of today that openly advocate armed conflict against the government.

Obama is not going to take away America’s guns. I would argue that he should, as countless Americans have displayed a gross misuse of the social responsibility that comes with gun ownership, except that using force to attempt to disarm people of their firearms might inevitably lead to more violence and bloodshed.

Gun owners should want to regulate and reduce their gun usage for the greater good, but our society is too consumed with the myopia of employing lethal force to resolve minor disputes that it cannot imagine an environment without widespread gun usage. And countless Americans are unable to see that their gun usage actually jeopardizes the very freedoms and liberties they have chosen to fight for and defend via the barrel of a gun.

 

By: Barrett Holmes Pitner, The Daily Beast, January 7, 2016

January 8, 2016 Posted by | 2nd Amendment, Democracy, Domestic Terrorism, Gun Violence | , , , , , , , , , | 1 Comment

“Down In The NRA Bunker”: NRA TV; A Day In The Life Of An American Gun Nut

Wayne LaPierre stood in front of an artificial backdrop the color of a cartoon midnight sky. He was dressed like a funeral conductor, in a black suit, white shirt and dark purple tie, but he looked like the corpse. Beneath his rimless glasses and permanently-furrowed brow, his face was hollow and his skin was gray, perhaps an effect of the grim topic he was preparing to broach.

“You and I didn’t choose to be targets in the age of terror,” he said.

“But innocents like us will continue to be slaughtered in concert halls, sports stadiums, restaurants and airplanes. No amount of bloodshed will ever satisfy the demons among us.”

As he spoke, an aria fit for a horror movie played in the background, making his message feel all the more dire, like an end-of-days commercial you might see on some far-flung channel in the middle of the night in between ads for Snuggies and home gyms.

“When evil knocks on our doors, Americans have a power no other people on the planet share: the full-throated right to defend our families and ourselves with our Second Amendment,” he said. “Let fate decide if mercy is offered to the demons at our door.”

LaPierre is the chief executive of the National Rifle Association, and this one-minute ad, released on November 30, after the Paris terror attacks, is part of the NRA’s effort to attract more members with commonsense fear-mongering as mass shootings—two in the last few weeks alone, in Colorado and California—and one-off, viral gun deaths—like the case of a 9 year old girl who accidentally shot her instructor in the head with an Uzi—threaten to tar the group’s reputation in the eyes of a incessantly-shaken public.

In 2014, the NRA unveiled plans to launch its own television network of sorts—a series of programs available “anytime and anywhere on your computer, tablet or mobile phone, or web-connected TV via browser, YouTube or Roku streaming player” that would allow people to see how empowering, fun and not-murderous gun culture can be.

NRA News, as it’s called, bills itself as “the most comprehensive video coverage of Second Amendment issues, events and culture anywhere in the world,” but it doesn’t feel of this world at all. It feels like how TV might be in a dystopian future where citizens hoard weapons inside their chrome hover-trailers, which they leave only to restock on Soylent and return to with a sunburn.

The network is broken up into different categories:

Commentary, from a varied cast including LaPierre, right-wing radio host Dana Loesch and Colion Noir (not his real name), a young black man who wears baseball hats, hates “political correctness and dishonesty” and, before being discovered by NRA News, had achieved minor YouTube fame with his pro-gun rants.

Investigative, which has a familiar-sounding show called “Frontlines” that covers things like how America’s energy infrastructure is vulnerable to terror attacks or, in the frantic words of NRA News, “The Fight For Light: The Coming Catastrophe.”

Lifestyle, which houses a vaguely-porny series called “Love At First Shot” that follows youngish women as they learn to shoot firearms for the first time with the instruction of other youngish women (sample description: “Julie Golob is about to show 21-year-old Kaytlin that with the proper instruction and safety in place, she can shoot large calibers with ease).

Profiles, home of “Armed & Fabulous” which, in episode 4, documented the life of Sandra Sadler, who looks like your average grandma except when she’s holding a dead animal by the antlers. She has, the narrator said, “a deep appreciation for the outdoors.”

Campaigns, another channel for the ads like LaPierre’s.

And History, which airs “The Treasure Collection,” the “Antiques Roadshow” of NRA News.

The videos are beautiful and slick, in the style of modern presidential campaign commercials or global warming documentaries. On YouTube, where over 200 of them are posted, they accumulate thousands of views. The clip of LaPierre has over 100,000. (The number of viewers for the shows on the NRA News website is not available, and the NRA did not immediately reply to a request for that information).

Aesthetics aside, the videos are attractive because in life inside NRA News, there are Good Guys and Bad Guys, Cops and Robbers, Freedom-Lovers Like Us and the godforsaken Them. Things are, apparently, simple when you are packing heat.

To the NRA, everything is black and white—but mostly white. Almost everyone featured on NRA News is white, except for Noir, David A. Clarke, a sheriff in Milwaukee County, Wisconsin who became a minor right-wing celebrity by attacking President Obama and Al Sharpton after the Ferguson protests and was featured in a video the NRA posted on 9/11 called “My Honor” (oddly, the NRA didn’t include Clarke’s name in the video, leaving it up to YouTube commenters to identify him), and an elderly woman whose name the NRA also did not include who, in a video titled “My Rights,” said she needed a gun because she lived in government housing where “gang-bangers walk down our halls every day.”

But it’s up against the NRA’s alternative universe of gun-slinging girls and mostly-white patriots in suits who want to preserve your rights that a different narrative is fighting competitively.

On Sunday night, from the Oval Office, Obama used an address about terrorism to condemn gun culture. “We also need to make it harder for people to buy powerful assault weapons like the ones that were used in San Bernardino,” he said. “I know there are some who reject any gun safety measures. But the fact is that our intelligence and law enforcement agencies—no matter how effective they are—cannot identify every would-be mass shooter, whether that individual is motivated by ISIL or some other hateful ideology. What we can do—and must do—is make it harder for them to kill.”

Obama’s speech came a day after The New York Times ran an editorial on its front page, titled “End the Gun Epidemic in America,” which called for the “outlawing” of “certain kinds of weapons, like the slightly modified combat rifles used in California, and certain kinds of ammunition.”

Conservatives reacted in fury. Erick Erickson, the right-wing radio host, sprayed his copy of The Times with 7 bullets and posted a photo of the remains on Twitter, where it currently has over 1,000 retweets.

The Times editorial came a day after The New York Daily News ran a cover with a photo of Syed Farook, one of the San Bernardino shooters, above a row of white men: 4 of them mass shooters, one of them LaPierre. Farook was a terrorist, the News conceded, “(But so are these guys…AND this guy).”

On NRA TV on Monday, Cam Edwards, the burly red-headed, bearded host of Cam & Co (sponsored by Nosler, the ammunition manufacturer) nearly filled 3 hours of airtime with talk of the anti-gun elites in the media.

With the Times op-Ed, Edwards said, “they’ve let the mask slip. They’ve let their intentions be known.”

Behind Edwards, there was a sign which read, “KEEP CALM AND EAT BACON.”

Only in the universe of NRA TV does such serenity—punctuated by bouts of paranoia—seem possible.

 

By: Olivia Nuzzi, The Daily Beast, December 8, 2015

December 9, 2015 Posted by | 2nd Amendment, Gun Violence, National Rifle Association, NRA News, Wayne LaPierre | , , , , , , , | Leave a comment

“Black Guns No Different From Other Sporting Guns”: Court Decision Uses Gun Industry’s Own Fiction To Uphold Assault Rifle Regulations

Right after the Sandy Hook massacre, both New York and Connecticut passed laws that tightened up restrictions on owning ‘black’ guns, a.k.a., the military-style AR rifles like the type Adam Lanza used to kill 26 adults and young kids. The laws basically toughened the earlier assault weapons bans, provoking immediate outcries from the pro-gun gang who challenged the laws based on their inalienable 2nd-Amendment rights. After all, the 2008 Heller decision protected private ownership of all guns that are “in common use,” and what could be more common than AR rifles of which probably more than four million have been manufactured over the last twenty years?

The gun industry began promoting black guns in the 1990s when they realized that hunting and traditional sporting use of guns was dying out. This promotion took two forms: on the one hand creating the fiction that black guns, like all guns protected us from crime; on the other hand creating the equally beguiling fiction that military-style weapons were no different from other, traditional rifles since they could only be fired in semi-automatic mode.

The industry went so far as to create an entirely new shooting tradition, replacing the phrase ‘assault rifle’ with the nomenclature ‘modern sporting rifle’ so as to pretend that an AR-15 is nothing other than the same, old hunting gun that sportsmen have for generations been taking out to the woods. And for those who like to imagine themselves mowing down ISIS or Al Queda in the streets and alleys of Philadelphia or New York, the guns being sold by Bushmaster, Colt, Stag and other black-gun manufacturers are referred to as ‘tactical’ weapons, which everyone knows is simply an assault rifle with a different name.

Both the CT and NY laws were challenged and upheld in District Court; now the Court of Appeals, 2nd Circuit, has upheld both laws again. What is interesting about this decision, indeed remarkable, is the fact that it is based not just on the government’s authority to regulate guns that are in “common use,” but to regulate these particular types of weapons based on their definition as created and promoted by the gun industry itself! The Circuit Court accepted the notion that black guns are just another type of sporting rifle, and it was the acknowledgement that black guns are no different from other types of sporting guns that ultimately legitimized the assault-rifle bans in Connecticut and New York.

Plaintiffs in this case argued that there were more than four million AR-15 rifles owned by civilians and that these guns, like other civilian weapons, could only be fired in semi-automatic mode. As the Court said, “This much is clear: Americans own millions of the firearms that the challenged legislation prohibits.” Further, the Court also accepted the notion that many Americans keep an AR-15 in their home for self-defense. Given those circumstances, how could the Circuit Court decide that prohibiting civilian ownership of such weapons was not a violation of 2nd-Amendment rights? Because what the Court did was take the gun industry’s own fiction about these guns and stand it on its head.

The industry’s marketing of black guns as ‘sporting’ rifles is based on one thing and one thing only; namely, these weapons can only be shot in semi-auto mode. Never mind that you can deliver up to 60 rounds of ammunition in thirty seconds or less; never mind that the .223 round has a lethality specifically designed to kill or injure human targets; never mind that many military and law enforcement units also deploy the semi-auto gun. That residents in New York and Connecticut can own all kinds of semi-automatic rifles which do not contain certain military-style features means that the ban on AR-style rifles is not a prohibition of semi-automatic weapons at all.

As a noted Supreme Court justice once said, “History also has its claims.” And one of those claims is that the 2nd Amendment doesn’t give the gun industry the right to invent a tall tale to justify how it tries to sell guns.

 

By: Mike Weisser, The Blog, The Huffington Post, October 21, 2015

October 22, 2015 Posted by | 2nd Amendment, Assault Weapons, Gun Control | , , , , , , , | Leave a comment

“Divided You Win”: The ‘Second Amendment Folks’ Get To Have Their Way On Every Single Occasion, For All Eternity

I don’t watch the “Sunday shows,” but did find this opening comment from Donald Trump on This Week to represent not just his illogic but that of most Republicans:

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Somehow this has become routine. The reporting is routine. My response here at this podium ends up being routine. The conversation in the aftermath of it. We’ve become numb to this.

(END VIDEO CLIP)

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: Well, he’s a great divider and, you know, you have a big issue between the Second Amendment folks and the non-Second Amendment folks. And he is a non-Second Amendment person.

So apparently, this means the “Second Amendment folks” get to have their way on every single occasion, for all eternity. The whole world could be plunged into fiery chaos, and you’d still find this small group of Americans buying up every gun in sight, and implicitly threatening the rest of us that they’ll use their firepower on us if we dare suggest that ten or twenty or thirty military assault weapons are enough for them. “Gun rights” have become a secular religion with its own oaths and litanies and most of all anathemas, and when politically aligned with the corporate Cult of the Golden Calf, one despairs of curbing its power.

 

By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, October 5, 2015

October 5, 2015 Posted by | 2nd Amendment, Gun Deaths, Gun Violence, U. S. Constitution | , , , | 4 Comments

   

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