“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
“When Silence Is Just Not Loud Enough”: Moments Of Silence In The House Have Become An Abomination
Our president was speaking to us in his grave yet hopeful voice, a timbre and tone he has had much practice in using. Far too much practice.
He uses it when there has been a mass shooting in America. And by some counts, this was his 14th time.
“We have to make it harder for people who want to kill Americans to get their hands on weapons of war,” our president is saying.
We have been working on that one for a while. But it is really not a matter of human lives lost, people lying in pools of blood or corpses shredded by gunfire.
Solving that problem would be relatively easy. The real problem is political — which is why no gun legislation with a serious chance of passing stands before Congress.
The body counts, the gore, the all-too-vivid last moments captured on a hand-held camera mean nothing compared with the politics of gun ownership.
It remains very easy to buy a semi-automatic rifle almost anywhere in America. Only seven states ban them.
So the killing continues. According to the Centers for Disease Control and Prevention, in 2013 guns were used in 11,208 deaths by homicide. That’s a lot. That’s nearly 31 per day.
Why so many? “Crazy” is a popular choice. Do you have to be crazy to shoot and kill 49 people in a nightclub? How about 20 small children in an elementary school? Or 12 people at a Batman movie?
Were all the shooters crazy? Could be. But foreign countries have crazy people, too, and many countries’ murder rates are much lower than ours.
Again, why? One reason is that in America, we allow individuals to own weapons of mass destruction — semi-automatic firearms with large magazines.
And though Congress banned them for 10 years — 1994 to 2004 — it has refused to reinstate the ban even though mass killings continue.
In America, a gun is not just a gun. It is a fetish, a totem, an icon. It has an appeal that defies mere logic.
Charles Bronson — and I swear I am not making up the name — is the former commissioner of agriculture and consumer services for the state of Florida. He used to be in charge of gun permits. Today he is still against more stringent gun laws, such as the ones that would ban semi-automatic AR-15 military-style rifles.
“People use AR-15s to hunt deer, to hunt hogs, to hunt all kinds of game,” Bronson told a reporter, and he said it would be a shame to change the gun laws “because of one person’s lawlessness.”
I am trying to see his point of view: One person kills 49 people and wounds 53 others, and that is nothing compared with the pleasure of executing a hog.
All these arguments are familiar. Everything about mass shootings is achingly familiar — the moments of silence, the lighting of candles, the wearing of ribbons, the hourlong news specials, the flags at half-staff, the president coming down to the briefing room and then the full-scale speech like the one President Barack Obama will make Thursday in Orlando.
“These mass shootings are happening so often now that lamenting them afterwards is becoming a national ritual,” Conan O’Brien said Monday.
O’Brien is a late-night comic. He is also an observer of life in these United States. It is sometimes hard to observe that life and still remain a comic, and I admire him for trying.
“I have really tried very hard over the years not to bore you with what I think,” he said, his voice growing angrier as he spoke. “However, I am a father of two. I like to believe I have a shred of common sense, and I simply do not understand why anybody in this country is allowed to purchase and own a semi-automatic assault rifle. … These are weapons of war, and they have no place in civilian life. …
“I do not know the answer, but I wanted to take just a moment here tonight to agree with the rapidly growing sentiment in America that it’s time to grow up and figure this out.”
Time to grow up. A fine idea. And I really wish the sentiment behind it were “rapidly growing.” Because not everybody in America will get a chance to grow up. Some of those children we send each morning to the “safety” of their schools will never make it back home alive. (According to Everytown for Gun Safety, “since 2013, there have been at least 188 school shootings in America — an average of nearly one a week.”)
On Capitol Hill on Monday, Republican House Speaker Paul Ryan called for a ritual moment of silence in the House chamber to commemorate those killed in Orlando.
Connecticut Democrat Jim Himes stood up and walked off the floor instead. Previously, he had tweeted:
“I will not attend one more ‘Moment of Silence’ on the Floor. Our silence does not honor the victims, it mocks them.”
“The Moments of Silence in the House have become an abomination. God will ask you, ‘How did you keep my children safe’? Silence.”
“If God is an angry God, prepare to know a hell well beyond that lived day to day by the families of the butchered. I will not be silent.”
And I, for one, hope he keeps talking, tweeting, speaking out and walking out.
By: Roger Simon, The National Memo, June 15, 2016
“Donald Trump’s Corrupt Bargain On Guns”: Where The Party’s Elites Pretend To Share The Base’s Cultural Values And Priorities
Donald Trump speaks before the National Rifle Association’s convention today, where he will enact a charade of cultural affinity for the assembled members, one utterly laughable in its insincerity. Not being there to ask them, I can’t say whether anyone in the hall actually believes that he means what he’ll say to them.
But as long as he hits the right notes — vowing to make sure guns are brought into as many places by as many people as possible, pouring sneering contempt on city slickers and egghead liberals, painting ludicrously paranoid pictures of America as a post-apocalyptic hellscape of crime and chaos, insisting that Hillary Clinton will singlehandedly destroy every right they treasure — it’ll be good enough for them.
This is a perfect expression of the larger Republican bargain, where the party’s elites pretend to share the base’s cultural values and priorities, and in exchange are put into office where they pursue an agenda of tax cuts and regulatory rollback. You can see it played out with one constituency group after another. For instance, when Trump stood before an audience of evangelicals and cited “Two Corinthians,” he quoted from the verse, then said, “Is that the one? Is that the one you like? I think that’s the one you like.”
The audience snickered at his ham-handed attempt at pandering, and when Trump says that the Bible is his favorite book (even better than The Art of the Deal!), nobody thinks he’s being honest. But guess what: Trump will have no trouble holding on to the evangelical vote in the fall. After some doubts, they came around to him, just like every Republican constituency group either has already or will before long.
It does take a bit of rationalization, but that’s often a part of the presidential campaign process. Once somebody is your party’s nominee, you’re going to work hard to convince yourself that he’s not just the least bad option, but somebody who’s actually terrific. So in the latest CBS/New York Times poll, 67 percent of Republican voters say Trump “shares their values,” even though for so many of them he plainly doesn’t. That number will probably climb higher between now and the election.
As for the NRA faithful, Trump is about as far from their values as he could be. A born-and-bred city dweller, he used to support an assault weapons ban and expanded background checks. In his 2000 book The America We Deserve he wrote that “The Republicans walk the NRA line and refuse even limited restrictions.”
But now he’s turned himself into a parody of a gun nut. He says he has a concealed-carry permit, he wants to rescind President Obama’s executive actions expanding background checks, he thinks assault weapons are tremendous, and he wants to make any permit you get in any state valid in the 49 other states, so people can bring their guns even where other states don’t want them. And as for gun-free zones, “My first day, it gets signed, okay? My first day. There’s no more gun-free zones.”
Trump is saying to gun advocates: Is that the one? Is that the one you like? I think that’s the one you like.
Gun advocates certainly get something substantive out of the deal: inaction. Fortunately for them, Trump doesn’t actually have to do much for them, since the status quo isn’t that bad as far as they’re concerned (forget about him wiping away gun-free school zones with a stroke of a pen on his first day — that exists as the result of a law passed by Congress in the 1990s, and it would take another act of Congress to repeal it). But the real appeal is cultural, and they want candidates to genuflect before that culture, no matter how baldly phony the act might be.
The NRA, which believe it or not used to be an organization devoted to promoting gun safety and good marksmanship, has succeeded over the last couple of decades in freighting guns with all kinds of cultural associations, making them one of the most powerful markers of identity in American life. They’ve encouraged people to think that gun ownership makes you self-reliant, independent, masculine, strong, capable, and patriotic — and anyone who thinks that 30,000 Americans killed by guns every year is a problem worth addressing must not be any of those things.
Those voters will be told that if they don’t get out and vote Republican, Hillary Clinton will send her jackbooted government thugs to break down their doors and take their guns, leaving them defenseless against the dusky horde of low-lifes lying in wait to kill them and rape their women. They will be told that it’s an emergency, that the gun-grabbing is set to begin the day after inauguration, that their lives and freedom and everything they hold dear hang in the balance.
“If you cherish Second Amendment rights, the stakes have never been higher than they are in this election,” says an NRA spokesperson, which is an amazing coincidence, considering that the stakes were never higher than they were in the last election, and the stakes were never higher than they were in the election before that, and the election before that and the election before that.
The cultural argument also helps cloud the fact that Republican politicians have chosen to take the positions of the NRA leadership, which are far more extreme not just than those held by the public, but even by the group’s own membership. The NRA opposes universal background checks, which are supported not only by around nine in ten Americans, but by three-quarters of NRA members. With just a few exceptions, nearly every Republican in Congress lines up with the NRA leadership and against their own constituents.
The group successfully tells gun owners: Forget about that, because Democrats want to grab your guns. There can be no compromise. And when Donald Trump goes before them and acts like Yosemite Sam, either they’re foolish enough to think he means what he says, or they decide that it doesn’t really matter.
By: Paul Waldman, Senior Writer, The American Prospect; The Plum Line Blog, The Washington Post, May 20, 2016
“The End Of The Democratic Party’s Silent Era On Guns”: Has President Obama Broken The Political Stalemate On Guns?
On Thursday night, for the first time since he rolled out his plan to expand background checks for guns, President Barack Obama publicly faced his critics—some of them, that is. His audience of several dozen at a CNN-hosted town hall included a mother and rape survivor, a shooting-range owner, and an Arizona sheriff, all of whom questioned Obama’s approach to the gun-violence epidemic. The only voice missing was the one that has long overshadowed these debates—the National Rifle Association. NRA officials declined their CNN invitation, preferring the comfort of Fox News to what they labeled a “public relations spectacle.”
Obama was ready to pounce on the NRA’s absence; he looked most at ease during the hour-plus event whenever he was attacking and counterpointing the group. Early on, host Anderson Cooper asked the president about the NRA’s absence. “Since this is a main reason they exist, you’d think that they’d be prepared to have a debate with the president,” he said, pointing out (pointedly) that their headquarters was just “right down the street.”
Only a few minutes in, Obama had already shed the last of his overly cautious image on guns. And he’d begun to give Democratic candidates in 2016 an object lesson in how to talk about gun control—and its fiercest foes.
For most of his time in office, Obama has mostly treaded carefully on the issue, calling on Congress to take action after each round of national mourning for a mass shooting rather than tapping into his own (albeit limited) presidential powers to take action. As a candidate, he was similarly cautious. Finally, at the Virginia town hall, Obama proved he has outgrown any fear of the gun lobby.
Democratic candidates, presidential and otherwise, have long been silent and defensive on gun control, fearing that gun owners’ distrust, stoked by NRA spending, would cost them elections. That thinking dates back at least to 1994, when Democrats lost Congress and the defeat was partly chalked up to backlash from the recently passed assault-weapons ban. The conventional wisdom only solidified when Al Gore lost his home state of Tennessee in 2000, costing Democrats the White House—another loss blamed, with scant evidence, on the Democratic candidate’s support for the assault-weapons ban and other forms of gun control.
It took roughly 20 years, but Obama has finally marked the end of the Democratic Party’s silent era on guns. His executive actions and last night’s forum mark the start—a strong one—to 2016, a year in which Democrats may finally learn to talk straight about the NRA and make combatting gun violence an issue they use to win votes, rather than shrink from.
Obama may not have convinced any of his NRA opponents that all he wants are modest measures, but he doesn’t need to. The NRA’s base won’t move, no matter what Democrats do or don’t do. But the vast majority of Americans already agree with the president on sensible background checks. Some 90 percent support background checks for guns, and in a poll before the town hall, CNN found that 67 percent of Americans support Obama’s recent executive actions.
Yet when asked about the likely effectiveness of his actions, the polls flip, showing nearly one in six think they won’t reduce gun deaths. It’s those sympathetic-but-skeptical Americans who Obama addressed most effectively on Thursday, giving us a preview of how the next Democratic presidential nominee will likely frame the party’s message on guns. “The goal here is just to make progress,” he said—incremental, but life-saving, progress.
Obama has given Democrats a template for how to navigate the gun-control issue in 2016. In his final year of office, he’s come out in front on gun violence, experimenting with the right message and providing his fellow Democrats with some political cover by taking the flak for it. He offered a roadmap on Thursday to the two Democratic presidential frontrunners—and candidates down-ballot as well—on how to campaign for gun reform.
First, he was (mostly) up-front about his own experience with guns. In the past, Obama has sometimes done his version of the compulsory “Democratic candidate goes hunting” photo-op, referencing his passion for hunting and skeet shooting (to be fair, he did mention it in passing on Thursday). But gun owners (along with everyone else) have long known enough to dismiss that as pandering. Obama’s far more effective moments at the forum came when he spoke about his other experience with guns, including Chicago’s gun violence, which has taken victims just blocks from his home.
Second, he knew who he was trying to convince: people who are already concerned about gun violence, but aren’t convinced that new regulations are really going to help. He turned to gun owners in the audience more than once, explaining that people “less responsible” than them shouldn’t be able to get a gun without a background check. And he came back again and again to his broader argument: “There’s nothing else in our lives that we purchase where we don’t try to make it a little safer if we can,” he said, comparing the gun industry to cars, toys, and medicine that have become safer with regulation.
Finally, Obama knew his enemy, and called the NRA out for its spin. At one point, Cooper asked him if it’s fair to call the idea he wants to take everybody’s guns a conspiracy, since “a lot of people really believe this deeply.” Obama—so visibly frustrated he mixed up Anderson Cooper’s name—cut in: “I’m sorry, Cooper. Yes, it is fair to call it a conspiracy. What are you saying? Are you suggesting that the notion that we are creating a plot to take everybody’s guns away so that we can impose martial law is a conspiracy? Yes, that is a conspiracy!”
It’s too soon, of course, to know if Obama’s approach will prove politically popular or just manage to embolden the NRA’s base—probably both. But Democrats appear more and more inclined to stop tiptoeing around the issue and the NRA. Hillary Clinton proposed an almost-identical plan to Obama’s executive actions last fall, a promising sign she’d continue Obama’s march if she becomes the nominee. Bernie Sanders also recently embraced Obama’s actions. If this year’s Democratic nominee pushes further ideas for using executive powers to make incremental progress on gun control—and calls out the NRA and its arguments with anything near the force that Obama showed on Thursday—then we’ll know the stalemate on guns in electoral politics has finally broken.
By: Rebecca Leber, The New Republic, January 8, 2015
“Down The GOP Rabbit Hole”: The Republican Race Is Becoming ‘Curiouser And Curiouser’ In All The Worst Ways
I too often feel as if I have fallen down the rabbit hole in “Alice in Wonderland” when I view the dysfunction that is the Republican primary contest. Maybe you remember the quote from Lewis Carroll’s wonderful book:
“But I don’t want to go among mad people,” Alice remarked.
“Oh, you can’t help that,” said the Cat: “we’re all mad here, I’m mad. You’re mad.”
“How do you know I’m mad?” said Alice.
“You must be,” said the Cat, “or you wouldn’t have come here.”
Well, those of us political junkies, and even those who can’t avoid the daily news bursts, are fast wondering if we are embroiled in the Alice in Wonderland of politics.
Ted Cruz reads “Green Eggs and Ham” on the Senate floor – anything to shut down the government. Donald Trump says very little that is actually true and doubles down when questioned. (He’s been awarded PolitiFact’s “Lie of the Year”; 60 of his 79 statements were labeled mostly false, false or pants on fire.)
The other candidates are trying desperately to keep up with the self-proclaimed outsiders Trump and Cruz, bashing immigrants, eviscerating President Barack Obama for “taking away our guns,” each trying to out-macho the other: Ben Carson says a Muslim shouldn’t be president, contrary to our Constitution; Marco Rubio helps write immigration reform legislation and then rejects it; Chris Christie called opponents of an assault weapons ban “dangerous”, “crazy” and “radical” in 1995, yet he now totally agrees with them; Carly Fiorina won’t even meet with President Vladimir Putin.
The madder you are, the louder your voice, the more outrageous your statements, the greater the likelihood that your poll numbers will rise in the Republican primaries.
Trump does take the cake: attacking John McCain for being a war hero, calling to ban Muslims from entering the U.S., suggesting building a fence and making Mexico pay for it, wanting to carpet bomb our enemies and target their families. Even hard-core conservatives wonder whether he has become the candidate most likely to tear up our Constitution, violate international law and shred the rules of the Geneva Conventions.
Maybe Trump deserves the title Mad Hatter in this race, but most of the others aren’t far behind. The Republican Party has truly become the Mad Tea Party – maybe a more appropriate description than any reference to the Boston Tea Party.
And throughout it all, this race is becoming, as in Alice in Wonderland, “Curiouser and curiouser!” Like Alice, maybe we could all wake up from this dream?
By: Peter Fenn, U. S. News and World Report, January 7, 2016
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