I see it all the time: people who believe the Second Amendment is an obvious, self-enforcing unmovable rock of American law. If you spend any time talking to gun owners, you will run into this. The basic idea that judges could simply interpret it out of the constitution is such an anathema to many people like this, they will often refuse to accept that it could happen.
In that vein, the 4th Circuit sitting en banc, in a 10-4 ruling deciding the fate of Maryland “assault weapons ban” have held that weapons that are “most useful in military service” are simply categorically unprotected. Because almost all modern firearms have a military pedigree, this interpretation would allow nearly any firearm to be banned.
The ruling was 10-4. Just let that sink in. That’s not even close. We have had to convince four additional judges to prevail here. A lot of people have done analysis of the ruling already, like Charles C.W. Cooke and John Richardson. What I want to do is look at a breakdown of the judges:
Judge King wrote the majority opinion, and was appointed by President Clinton.
Chief Judge Roger Gregory joined the opinion. He was recess appointed by Bill Clinton, but George W. Bush put him on the bench permanently.
Judge Harvey Wilkinson wrote a concurring opinion. He will never sit on the Supreme Court so long as there’s any life left in the National Rifle Association. He is a “conservative” judge, but one who hates gun rights. He was appointed by President Reagan.
Judge Motz was appointed by President Clinton.
Barbara Milano Keenan was appointed by President Obama.
James A. Wynn was appointed by President Obama. He joined Judge Wilkinson’s opinion.
Henry Franklin Floyd was appointed by President Obama.
Stephanie Thacker was appointed by President Obama
Pamela Harris was appointed by President Obama
Joined in Part
Albert Diaz was appointed by President Obama. He only joined the 2nd Amendment and 14th Amendment portions of the decision.
William Byrd Traxler was appointed by President Clinton, and wrote the dissenting opinion.
Paul Niemeyer was appointed by President George H.W. Bush
Dennis Shedd was appointed by President George W. Bush
G. Steven Agee was appointed by President George W. Bush
Boy I sure am glad we taught the GOPe and those assholes McCain and Romney a lesson they won’t ever forget! Even if George W Bush and Reagan hadn’t flubbed a few nominations, we still would have lost because the 4th circuit Court of Appeals is absolutely stacked to the gills with Obama and Clinton nominees. You know the old adage that only the Republicans get court picks wrong?
Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland, the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.
In addition, the majority holds that even if it is wrong when it says that the Second Amendment does not cover these commonplace rifles, Maryland can still lawfully forbid their purchase, even for self defense in one’s home-the core Second Amendment right. My friends do not believe this ruling impairs the rights citizens have under the Constitution to any significant degree. In my view, the burden imposed by the Maryland law is considerable and requires the application of strict scrutiny, as is customary when core values guaranteed by the Constitution are substantially affected. I recognize that after such a judicial review, the result could be that the Maryland law is constitutional. I make no predictions on that issue. I simply say that we are obligated by Supreme Court precedent and our own to treat incursions into our Second Amendment rights the same as we would restrictions on any other right guaranteed us by our Constitution.
Therefore I respectfully dissent.
Written by a Clinton Appointee. Sometimes they don’t get what they want out of a judge either.
It’s Neil Gorsuch. You can check out his profile on SCOTUSBlog here. As John Richardson noted earlier today, he’s not written any opinions on the Second Amendment, but he’s in the same mold as Scalia, except for not being very fond of Chevron Deference, which is fine by me. We don’t know exactly where he stands on the Second Amendment, but given his overall judicial philosophy, I’d find it doubtful he’d be against us. That will need to come out in the hearings.
Speaking of the hearings, I fully expect this to go nuclear, meaning the Republicans will have to eliminate the filibuster for Supreme Court nominees the same as they were eliminated for lower court nominees by the Dems. I think they should do it, because they can be absolutely assured the Dems will do it if they control the Senate again in the future. They pretty much said they would. Don’t give GOP lawmakers room to be fools and unilaterally disarm.
It’s important to remember, Scalia was the strongest justice on the Court for the Second Amendment. Replacing him with someone just as solid is just not going backwards. I would have preferred someone with a record on the Second Amendment. We never had records on Roberts or Alito, but they both voted with us when it counted. Alito and Thomas are strong on this issue. Either Roberts or Kennedy, or both, are softer supporters. We need to get one more vote on there before we’ll be moving ahead.
UPDATE: NRA is endorsing the choice out of the gate. My guess is they have talked to him, and the speed of the release means they knew about it before it was announced.
We did litigate the Colorado magazine limitations in the 10th Circuit. The District Court upheld the ban, but that ruling was thrown out by the Circuit Court because they argued none of the plaintiffs had standing to sue. Judge Gorsuch didn’t have anything to do with that case, so the best we can do is the quote from SCOTUSBlog link above:
Together §§ 922(g) and 924(a)(2) operate to criminalize the possession of any kind of gun. But gun possession is often lawful and sometimes even protected as a matter of constitutional right. The only statutory element separating innocent (even constitutionally protected) gun possession from criminal conduct in §§ 922(g) and 924(a) is a prior felony conviction. So the presumption that the government must prove mens rea here applies with full force.
I think more will have to come out in the confirmation hearing, but his position on that case makes him promising. We will have to replace one of the liberals to move forward. Otherwise I’m afraid we’re just going to create more bad precedent in the circuit courts that the Supreme Court will leave in place when they refuse to hear the case.
I’ve run into a fewthreads over the weekend discussing National Reciprocity, and the power Congress is relying on to pass it. There seem to be a number of misconceptions.
First, Congress is not required to state what power its authority to pass a bill falls under, and so often bills do not discuss that. The argument for whether a bill falls outside of Congress’ enumerated powers is an argument for the courtroom. Previous National Reciprocity Bills have had statements speaking to Congress’ power to pass it, but this latest bill, H.B. 38, does not. It is probably best that the bill does not discuss that. National Reciprocity relies on three powers of, with some arguably weaker than others. I will discuss them from the strongest to the weakest (in my opinion, reasonable people can differ):
Commerce Clause: Much of our federal gun control law rests on Congress’ power to regulate interstate commerce. That’s why in much of federal gun control law you see “in or affecting interstate or foreign commerce, ” and why you’ll also find that type of language in H.B. 38. Granted, I strongly believe the Courts have interpreted this power way too broadly, but if we can prosecute felons for possessing firearms because that firearm was once transported in Interstate or Foreign Commerce, it would be interesting to see the Courts’ reasoning on why it can’t apply to firearms carried by civilians. That’s why I believe this is probably the strongest argument for the bill, even if I don’t personally like it. The apple cart that would be upset by the Courts rejecting what is sometimes called the “Herpes Theory” of the Commerce Clause is big and consequential enough I don’t think the federal courts would want to risk it.
14th Amendment: A lot of people have argued that the 2nd Amendment trumps the 10th Amendment. This is true, but only because the 14th Amendment made it so. The 14th Amendment prevents states from interfering with the civil rights of Americans, and also gives Congress the power to enforce that amendment via legislation. This is the power I’d like to be the most solid, but we have a big complication with City of Bourne v. Flores, which argued Congress could not extend the meaning of a right beyond what the Courts have recognized. I would argue Heller and McDonald both acknowledged a right to carry defensive arms, so in this case, Congress is not overstepping its bounds. Additionally, there is a Right to Travel under the 14th Amendment that is recognized by the Courts, and which provides us with additional structure in this area. Finally, National Reciprocity is something more suitable for Congress’ powers than the courts. The courts can strike down laws, but the creation of a reciprocity regime is something only Congress can do appropriately.
Full Faith and Credit: A lot of people mistakenly believe driver’s licenses are recognized in every state because of this clause. That is not the case. Driver’s licenses are recognized in every state via an interstate compact, or by direct state recognition. It is purely a function of state law. What the Full Faith and Credit Clause means is not terribly well defined, and I believe we’d have trouble with the “public policy” exception the Supreme Court laid out in Pacific Employers Insurance v. Industrial Accident. I think this is the weakest power of the three, but Congress has never done anything quite like National Reciprocity, so it’s still there.
If you want to read a more in-depth analysis of what I’ve discussed here, I’d recommend Clayton Cramer’s new paper: “Congressional Authority to Pass Concealed Carry Reciprocity Legislation” Please keep these arguments in mind when you run into people spouting “states rights” arguments against National Reciprocity. You’ll find a lot of conservatives doing this if you look. Congress has had the power and used the power to protect the civil rights of Americans since the end of the Civil War. It should not be shy about using those powers to protect the Right to Keep and Bear Arms any more than it other civil rights which have been long protected under federal law.
I spent a lot of time and effort trying to convince people, despite serious flaws in their record on the gun issue, to vote for John McCain and Mitt Romney. I thought Barack Obama was going to be a disaster for gun rights, and he very nearly was! I don’t regret what I did, because we’d be 7-2 on the Second Amendment right now on the Supreme Court if McCain had won. I feared one of the Heller Five would not make it to the end of an Obama second term, and I was right. I did not expect the GOP to grow a pair and block Obama from putting a third Justice on the Court, but thank God they did. Even if the best McCain could do is Papa Bush, we’d at least be 6-3, which is a better place to be than 5-4.
But I can’t ask people to do something I am not willing to do myself, and I just couldn’t work up enough enthusiasm to shill for Trump, and my down ticket races were Toomey and Fitzpatrick. A lot of people were enthusiastic for Trump, and did the necessary and often unenjoyable ground work needed to win elections. The future of the Second Amendment will probably owe them a debt of gratitude. I’m sorry I could not join you this time, but I will continue to do what I can to fight the good fight in a future of hopefully better candidates.
I do not trust Trump, but hopefully he at least knows where his bread is buttered and gives us some decent Supreme Court picks. I am hopeful he’ll be a better President than I expect. The people have spoken! God help us, they have spoken.
I’ve received the following. For those who can remember the beginnings of the 2A movement, Don was the person who took it mainstream, with his article in the Michigan Law Review. He thereafter served an invaluable function in reaching out to academia […]
His work represented a key foundation of the Heller and McDonald decisions. I think it’s reasonable to argue that without Don Kates there would have been no Heller and McDonald. It would be awful for his memory if those cases end up reversed or limited to meaninglessness by future courts. Let us hope that does not happen.
This one pretty much successfully sums up what’s at stake:
I’ve found a lot of folks who don’t seem to understand that the Second Amendment is not self-enforcing. You’d think this would be kind of obvious, but you’d be surprised how many people think just because the words are on a piece of paper that actually means something. When you start explaining it, I think inherently these people get that it’s not, just that they have such a difficult time wrapping their heads around the idea that federal judges would engage in such blatant skulduggery as to suggest the amendment doesn’t mean what it plainly says.
Our only hope for saving the handful of bad states for gun rights is the federal courts. If Hillary picks Scalia’s replacement, that path will be foreclosed for a generation. In that scenario, I’d be lucky, very lucky, to live to see that damage undone. Most of the folks who laid the foundation for Heller and McDonald will not live to see it. We’ll be lucky if we don’t see those cases reversed entirely.
Fact: the word “child” nor “toddler” can be found at all in the Heller decision. It was about whether a 66 year old security guard was allowed to keep a firearm in the home and ready for self-defense. Hillary Clinton has said she is opposed to the Heller decision. When she claims that this is about the children, she is out-and-out lying.
As anybody with an elementary understanding of American law comprehends, one does not need to call an Article V convention in order to effectively remove a provision from the Constitution. If, for example, Donald Trump were to claim tomorrow that the First Amendment did not protect an individual right to speech, how do we imagine that the press corps would react? Do we think that the New York Times’s editorial board would nonchalantly say “well, that’s fine because he hasn’t called for Article V repeal”?
Even without overturning Heller, her nominees would still have the opportunity to narrow to meaninglessness. Sure, outright bans might never come back, but de-facto bans, like the one that exists in New York City, could be upheld. Even Washington D.C. responded to Heller by enacting restrictions that were still quite onerous, and would never be considered acceptable in the context of other Constitutional rights. Chicago fared a little better, but only because the 7th Circuit was unusually cooperative, and it bolstered the negotiating position of the rest of Illinois, which favors gun rights. Without a fourth and strong pro-2A Supreme Court ruling, the Second Amendment is already dead letter.
Eugene Volokh takes a look at various stun gun bans. A lot of states and localities were moving in the direction of repeal before Caetano v. Massachusetts. So far, post Caetano repeals:
The US Virgin Islands
Baltimore County (though it is still on the books, but the County Attorney has announced it will no longer be enforced)
Philadelphia still has its ban in place, but at this point it’s hard to see how it would be enforceable in light of Caetano. Like I said when the ruling came out, I don’t think anything should be read into that ruling in regards to how the liberal justices would treat a firearms case, but I can’t discount the fact that Caetano was a good ruling. If we can defeat Hillary, and get a few more friendly justices on the Court, it would be possible to build on this ruling in a positive way. If things go the other way, I think we’ll be lucky to hold on to Heller and McDonald.
I hate to admit that, because I don’t like Trump, but that’s the way it is.