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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

“Americans Are Paying The Price In Blood”: Guns Kill People In The US Because We Pervert The Second Amendment

America’s gun violence, like our grief in Oregon, seems to know no bounds, no limits, no end. The reason is deadly simple: our very lives are chained to a constitutional amendment that is willfully misinterpreted by many and perverted by gun rights advocates for political ends.

That sullied amendment is the United States constitution’s Second Amendment which states, “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.” The gun industry and its supporters have turned that simple statement into a clever marketing tool, and Americans are paying the price in blood.

On Thursday, Roseburg, Oregon – a three-hour drive south of the Oregon’s largest city, Portland – was rocked by a deadly mass shooting that wounded seven people and took the lives of 10 others, including the gunman. Students were in classes at Umpqua Community College when a 26-year-old gunman shattered their world when he opened fire on them. They are, sadly, not unique: hardly a week has passed in the last three years without a mass shooting.

For 15 years, Ceasefire Oregon has fought the gun lobby – and people like Douglas County sheriff John Hanlin, the gun rights advocate who is investigating this latest shooting – and worked to pass reasonable, effective gun laws.

Hanlin is one of many who claim that the answer to gun violence is to help those who have mental health problems while the rest of us stock up on guns and ammo. Hanlin, gun extremists and groups like the National Rifle Association have scapegoated people with mental health problems for years – but they know that such people are far more likely to be victims of violence than the perpetrators of it (and far more likely to kill themselves than other people).

Gun rights advocates also claim that we need more guns to protect ourselves from gun violence. But with 310m firearms in the US, and despite the fact that one in every three Americans owns guns, more guns are not making us safer.

After the Sandy Hook massacre in 2012, we at Ceasefire Oregon worked with Moms Demand Action, Everytown for Gun Safety, Gun Owners for Responsible Ownership, the Brady Campaign and the Oregon Alliance for Gun Safety to pass a background check law despite opposition from a few Democratic legislators and a few Oregon sheriffs, including Hanlin. And, after years of work, Oregon finally passed a bill requiring background checks for almost all gun sales last spring.

But gun violence is a cancer in our nation and, just as no single drug will cure all cancers, no single gun law will cure all gun violence. Rather, we need comprehensive, effective legislation and caring, courageous leadership to change both America’s laws and Americans’ views on guns and gun violence. Too often, gun control advocates hear that nothing can be done to change things in this country, but that’s just not true.

Gun violence prevention researchers and advocates know that we can reduce gun violence by passing effective, common-sense laws, like background checks for all gun sales to stop criminals and those with demonstrated mental health issues and histories of violence from buying guns. Waiting periods between the time of gun purchase and possession can provide purchasers with a cooling-off period to help deter homicide and suicide. Instituting gun violence restraining orders can reduce violence by allowing family members and law enforcement to remove a gun from a loved one who is exhibiting warning signs of violence.

We can require – or at least heavily incentivize through liability statutes – that firearms be kept secured at all times with trigger locks or in a safe. We can reduce gun trafficking by allowing people to purchase only one gun per month. We can reinstate the federal assault weapons ban to ban the purchase and possession of high-capacity magazines and assault rifles, which are not necessary for the most dedicated home-defender or hunter.

And Americans can refuse to support lawmakers of any party who do not support “gun-sense” laws – like background checks, higher standards for gun ownership and funding for the Bureau of Alcohol, Tobacco and Firearms – at the ballot box. We can challenge all 2016 presidential candidates to issue a plan to cut gun violence by 50% before 2020 (the final year of the next president’s first term in office), and Ceasefire has done so.

We are citizens of a great nation, but our children, our mothers, our fathers and our friends are being mowed down, fed to the gun industry’s insatiable appetite for profit. Our founding fathers wrote the Second Amendment to protect our country. Now we must protect our country from those who pervert the Second Amendment.

We know this can be done. We know this must be done. Our national nightmare of paying into the gun lobby’s profit machine must be brought to an end.

 

By: Penny Okamoto, The Guardian, October 2, 2015

October 4, 2015 Posted by | Gun Lobby, Gun Violence, National Rifle Association, Second Amendment | , , , , , , , | 1 Comment

“Homemade Trail Mix”: Obama-Fearing Gun Nuts Are, Well, Nuts

There seems to be a little confusion on the part of gun enthusiasts about what a second Obama term means for them, and how they can battle any efforts to control their firearms ownership.

First, there are the nervous sorts who raced out and bought guns rights away after President Obama was re-elected. The subtext is that somehow this president will take away their guns—and yet there is no evidence to indicate that. In fact, the opposite is true: Obama has not only not done anything to advance gun control, but he actually expanded gun rights early in his term, signing a law that allows people to bring guns onto federal land.

Nor does the ongoing Democratic majority in the Senate pose a plausible threat. The Democrats, while perhaps at heart in favor of sensible limits on guns, figured out a long time ago that they will only be the majority party if they keep pretty quiet about that—and allow some of their recruits to be staunchly pro-gun.

But while that seems a tad hysterical, as a reaction to Obama’s win, it’s positively rational compared to the behavior of the owner of an Arizona gun shop. Says a full-page newspaper ad in the White Mountain Independent:

If you voted for Barack Obama your business is NOT WELCOME at Southwest Shooting Authority. You have proven you are not responsible enough to own a firearm.

There are some obvious inherent problems with this policy. For one, how will the owner know whom a potential buyer voted for in the election? Secondly, wouldn’t a gun-owning, pro-Obama voter be more likely to pull the party even closer to an embrace of the Second Amendment (omitting the inconvenient part about a “well-regulated militia”)? And if someone opposes gun control, why initiate a de facto limit on gun ownership by denying your firearms business to the 51 percent of voters who indeed chose Obama?

Perhaps the owner believes there will be, as a Texas judge irresponsibly and irrationally predicted, some sort of civil war provoked by Obama’s re-election—and maybe he doesn’t want the other side to have guns. Or maybe it’s just about the “other”—Obama’s race, his unusual name, and the legions of African-Americans, Latinos, gays, lesbians, single women and everyone else who doesn’t fit into the Ward Cleaver mode—that are giving the gunshop owner such a case of the nerves. He might want to get used to it. He’s now in the minority.

 

By: Susan Milligan, U. S. News and World Report, November 19, 2012

November 21, 2012 Posted by | Guns | , , , , , , , , | Leave a comment

   

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