Hardly a Surprise

SCOTUS has denied cert in the Kolbe case challenging Maryland’s assault weapons ban. They have also denied cert in Norman v. Florida challenging Florida’s ban on open carry.

Heller and McDonald are all we’re getting out of this court. That much is apparent. We need to change one, possibly two justices on the Supreme Court of we’re going to take the Second Amendment any further. That’s just the way it is.

31 thoughts on “Hardly a Surprise”

      1. So more like squishes.

        Not really surprised- they like to fail to do their jobs.

  1. I think 1 or 2 justices who supported Heller have a hang-up over the ‘weapons of war’ concern cited in the Maryland case. I firmly believe that the purpose of the 2nd A is to protect the right of citizens to possess weapons of war. Weapons that would give the people a fighting chance against a military threatening our liberties.

    1. The problem with that is that there wasn’t any real discussion, or even recognition of, the concept of “weapons of war” at the time of the Founding.

      At that time, the people possessed the same, and often superior rifles (the Kentucky long rifle for example) as the “regular” troops. The distinction in the difference of the “arms” carried by the militia or the Red Coats (the “regulars”) was inconsequential.

      No, the real question is for purposes of the 2A – is the item an “arm”.

      Now, all fire”arms” are “arms”. So it should be easy. An AR15 is a fire”arm” therefor the possession is protected.

      Of course, on that standard an M16 is also an “arm” because it is a fire”arm”, just one that shoots FA.

      I think this is where we’re running into trouble. Even Scalia backed away from the MILLER test in HELLER. Even he maybe, but surely even 2-3 of those that voted with him are scared of FA firearms (“machine guns and such” I believe is from testimony in HELLER) and perhaps also SA arms that come close to them.

      Notice that even Thomas didn’t write a dissent here. Is he just tired of cajoling the SC to defend HELLER, or is this a bridge too far even for him?

      Scary thought.

      1. Actually, Tench Coxe mentioned weapons of war specifically in reference to the second amendment:

        “Who are the militia? Are they not ourselves?
        Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American.

        [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people”

        Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788

        We need a “terrible instrument of the soldier” test for the Second Amendment.

        1. ah, but again, there was no distinction between arms (remember, arms are what is protected) carried everyday for civilian use and those carried by the militia or the regulars.

          the “every terrible implement” can be read broadly to encompass cannon etc, but the Founders did not speak of cannon as arms.

          the 2A doesn’t say “the right to keep an bear weapons shall not be infringed”.

          The Founders used the word “arms”, and arms then didn’t refer to cannon.

          Also, the Coxe quote references the militia, so the argument can be made that the “every other terrible implement of war” is in that context, not under the individual rights part of the 2A.

          Just food for thought.

          1. Scott,

            “[T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people”

            Scott, that directly says it is an individual right. It’s not in the hands of the STATE or FEDERAL gov but the PEOPLE. And did you see the “birthright of an American” part? It doesn’t say the “birthright of the state or federal government.” Any contrary argument is literally nonsense. Not that that won’t stop idiots from arguing it.

            1. There is an individual right to arms.

              I never said otherwise.

              Arms. Not all weapons, or all weapons of war, or even “every terrible implement of war”.

              The 2A speaks of “arms”.

              Other words were available in 1787.

              But the Founders used the word “arms”.

              A lot of people on our side don’t seem to know what “arms” are.

          2. But then, the Founders were comfortable with private citizens owning cannons. Even today, it’s legal to own a cannon, and frankly, I don’t see why it should be illegal: cannons aren’t exactly things that are easy to commit crimes with!

            1. I’m not saying one way or the other whether cannon, or any other weapon for that matter, should or should not be illegal,

              just that weapons other than “arms” are not what is protected by the 2A.

              Cannon aren’t “arms”. They weren’t in 1787, they are not now.

              Maybe there is a “right” to own them that existed prior to the adoption of the Constitution (as CRUISHANK said of “arms”) or its covered under the 9th, or because the Constitution doesn’t say you can’t.

              But the “right” to cannon isn’t protected by the 2A.

    2. That’s not a belief of yours, it is a plain fact:

      “Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.

      Tench Coxe
      “Remarks on the First Part of the Amendments to the Federal Constitution,”

      1. “keep and bear” – only arms that one would keep and bear.

        you can’t bear a cannon, and no one spoke of keeping a warship.

        1. The Marque And Reprisal clause implicitly assumes a privately-owned armed vessel; but it also assumes official government sanction of same.

          1. That’s because if you do the kinds of things a Letter of Marque and Reprisal allow you to do, only you don’t have one, you’re engaging in piracy.

            1. True enough, and the end of the era of armed merchantmen was happening at the time of ratification – did Nathaniel Bowditch’s ships sail armed?

          2. Is a privately owned armed vessel an “arm” as in “the right to keep and bear arms”?

            Can you point me to any Founding era document that describes someone “keeping” a warship, or “bearing” a warship.

            For example, at the time of the English Bill of Rights in 1689 “Catholics were forbidden to keep arms in their houses”.

    3. They don’t even have to evaluate whether or not the 2A protects “weapons of war”. They could just evaluate whether or not pistol grips and flash suppressors make protected weapons into “weapons of war”. But I supposed we wouldn’t want the precedent set that “weapons of war” are unprotected.

    4. Which is funny, because the Maryland case’s arguments would allow a ban of a non weapon of war (AR15) but allow an actual weapon of war (Garand).

      I think they just don’t like doing their jobs.

  2. The Kolbe decision invented the whole “like an M-16” argument out of whole and went on for pages on how Heller said this and why these guns weren’t protected under the 2nd Amendment as “weapons of war”.

    Then then used the Heller individual right discussion as not connected to militia service to justify the ban since “no militia, no need for militia capable rifles”. Which is incredible given the 2nd Amendment argument is that the militia is a pre-requisite for the exercise of the 2nd Amendment.

    This decision was literally no win and a “have your cake and eat too”. Certainly one of the most anger-inducing reads you can have in watching a court invent assumptions and language that were never present in Supreme Court decisions, let them fill in the blanks out of their own predetermined outcome and the Supreme Court let it slide.

    The Supreme Court is supposed to defend Constitutional Rights. All of them. Even ones they aren’t supposed to like. Instead, they’ve abrogated their duty to the citizens of this country because they lack the intellectual fortitude and self-honesty to do the right thing. Even a negative decision is at least drawing the boundaries of the right even if we disagree with it and make it easier for us to understand how our rights are to be perceived and defended.

    This deference to lower courts and letting them run roughshod over a right they don’t like is going to come back and bite us in really bad ways. The Constitution is pretty much a pretty document, its words meaningless except for what legal conjuring a Court can come up with to make the personal preferences real and enforceable.

    1. Anger inducing indeed. The dissent pointed out the utter illogic of their argument.

  3. Ironic since in essence, courts failing to apply the clear language of the 2A is why we have the 2A. One ugly day the people ourselves may deny cert for every decision ever handed down.

  4. LEgislative remedies remain. Congress could, under even a relatively strict reading of its powers, require the states to allow private ownership of EBRs, magazines, etc (2A, 14A, commerce clause, militia clause).

    The antis push hard enough, it’ll happen. They push too hard, they might end up with a “this time we mean it” Constitutional Amendment. There’s enough shall-issue states to pass one…

    1. There are some of those shall issue states that are extremely squishy and headed the wrong direction, such as Washington and Oregon.

        1. Yes, we are rapidly becoming two countries, one where right to arms exists, and one where it doesn’t (NJ, etc, etc).

          1. Anti-gun States vs Free States.

            I really don’t like where this might be headed…

          2. Not just in regards to 2A either. It is time we recognize this and start acting on partition.

  5. “Heller and McDonald are all we’re getting out of this court.”

    It is even worse than you say. Some findings of Heller/McDonald itself is suffering erosion.

    See how SCOTUS refused to hear an appeal of the atrocious handgun “storage” law of San Francisco.


    “The U.S. Supreme Court rejected efforts by gun owners and the National Rifle Association on Monday to halt San Francisco’s enforcement of a 2007 ordinance requiring residents to keep handguns locked when stored at home.

    The action, over the dissents of Justices Clarence Thomas and Antonin Scalia, was another step in defining the limits of the high court’s 2008 ruling that said the Constitution guarantees the right to possess guns at home for self-defense….

    Under the San Francisco ordinance, handgun owners can keep their weapons at home but must keep them locked in safes or disabled by trigger locks when not using them.

    Gun advocates argued that the law interferes with the right of self-defense that was constitutionally protected by the Supreme Court’s 2008 ruling. But a three-judge panel of the appeals court in March refused to halt enforcement of the ordinance, saying it does not interfere with the right of self-defense or seriously hamper a gun owner’s ability to use a weapon.”

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