Author: Sebastian

San Francisco prevails on magazine capacity. Our side is going to appeal in the case, but I think this is going to be a tough slog, and I fear we may lose in the end. Some of our academics, even the ones on our side that are very influential, preemptively surrendered on this issue (unwisely in my opinion), and magazines will end up being a difficult hole to dig out of if we can accomplish it at all.

Many people on the other side of this issue have argued that judges are in no position to decide things like how many rounds one does or doesn’t need for self-defense, or whether a certain firearm has features that ought or ought not to be protected. I actually agree with them on that argument. But our opponents then turn around and argue this is the reason to leave such things in the hands of legislatures, which is where I strongly disagree. That would render the Second Amendment meaningless as a right, which is I suppose their purpose in such an argument. There is another way.

The Heller “common use” language provides a means for taking such decisions out of the hands of judges and legislatures, and putting it with the people, where it belongs. If the people generally choose magazines with more than ten rounds for self-defense, or choose rifles with pistol grips and adjustable stocks, then those are protected arms. Period. Once it’s shown at trial that such magazines and rifles now represent a significant percentage of guns sold in the American marketplace, no further analysis need be required. It is apparent that magazines greater than ten rounds are overwhelmingly what the public is choosing to arm themselves with, so those are protected. End of analysis.

But common use is not the only mechanism by which we can save judges from having to make judgement calls. After all, it’s always possible a legislature can pass a ban on new technology before it ever gets to be in common use. This is where Professor Nelson’s Lund’s assertion that we must also look at police use comes in handy in relieving judges from having to engage in interest balancing. Any law that citizens are subject to that law enforcement agents are not should automatically make justices suspicious of legislative motives in passing such a restriction. A legislature can not ban an arm for supposedly only having criminal use, or overwhelmingly having a criminal use, or being dangerous and unusual, and then turn around and exempt police officers, claiming those officers need those very arms for their own defense. That goes double if those arms are actually in common police use, such as magazines holding more than ten rounds.

Judges don’t need to engage in interest balancing when deciding the Second Amendment. We already have several proposed mechanisms that would allow the right to be evaluated in a more objective and bright-line fashion. We may have to decide how broadly or narrowly we define “common use,” and how judges and legislatures can classify or sub-classify arms, but the pre-existing mechanisms provided by Heller and Professor Lund provide an inherently better, limiting mechanism that obviates the need for any interest-balancing approach required to decide what the magic number is in regards to how many rounds in a magazine are protected, and how many aren’t.

It’s well known that the American Bar Association are a left-leaning organization that is institutionally anti-gun. But just how institutionally anti-gun? Well, they are having a symposium in Philadelphia that essentially invites no one who is any kind of expert on the current state of Second Amendment law, despite the fact that we have at least one local expert, and several others that aren’t too far away. The closest they come is Erwin Chemerinsky, who as far as I know has only published one very brief law review article on the subject that really breaks no new ground on the subject. The only other bit of legal writing on the Second Amendment I can find was his Amicus Brief before the Heller Court, which he co-authored with Professor Adam Winkler, in support of the District of Columbia. Their brief argued such things that even if the Second Amendment is an individual right, unlike any other right it may be subject to essentially no higher scrutiny than rational basis review:

Assuming an Individual Right Unrelated to Militia Service, the Text of the Second Amendment and the History of the Right to Bear Arms Support the Application of Reasonableness Review [..] Reasonableness Test Is Consistent with the Text of the Second Amendment, Which Explicitly Acknowledges the Necessity of Government Regulation for Public Safety and Security.

These arguments were rejected, and thus don’t represent the current state of the law. I have no doubt that Prof Chemerinsky is well aware of the current state of Second Amendment law, but let’s not pretend this is anything other than refighting the Heller and McDonald decisions, and commiseration on just how wrong the Supreme Court got it. Meanwhile, next week in Knoxville, there will be a symposium on the Second Amendment that discusses “New Frontiers in the Second Amendment.”

The scary thing in all this? All it would take is one death or retirement out of five for the ABA viewpoint to become law, and for all our gains to end up reversed or minimized into little to no effect. We are essentially walking a dangerous tightrope for the next three years, and that’s assuming we win in 2016, which I’d not bet money on at this point.