Back in 2006 I happened to be a guest at a law school dinner, and before the dinner Antonin Scalia gave a talk. He later told me that it was ‘the same talk I give a hundred times a year,’ and then we all sat down for a meal. At some point someone told him I was a gun dealer, and he jumped up, grabbed his plate of food, came running over to my table, pushed the guy next to me out of the way and sat down. For the next hour he talked animatedly about different guns, different calibers, was particularly interested in my thoughts about the differences between a 338 Winchester Magnum and a 300 Weatherby; I told him it didn’t matter since if he was more than 150 yards away he wouldn’t hit the mulie anyway. We went on and on.
It hardly came as a surprise that he authored the Heller opinion in 2008 because he was not only a certifiable gun nut, but was probably the only member of the Court who knew anything about guns. In fact, if you read Steve Breyer’s dissent in Heller, you’ll discover that Breyer evidently doesn’t know a rifle from a musket, which when it comes to how much any of the other SCOTUS justices knows about guns, is probably about par for the course.
In the aftermath of the Heller and MacDonald decisions, Gun Nation has been diligently trying to get more gun cases before a right-leaning Court, and the possibility that Obama might appoint a liberal to the bench will no doubt be used by the NRA as the theme of their weekly pitch for dough. The fact is (I really enjoy using the word ‘fact’ when I write about guns) that the SCOTUS has heard exactly one 2nd-Amendment case since 2008, a case in which the Court, in a majority opinion written by Justice Kagan, effectively upheld the entire ATF regulatory system as not infringing on 2nd-Amendment rights. And just this past December, the Court declined to hear a case, Friedman v. City of Highland Park, in which a man sued because the town in which he lives won’t let him own an AR-15, a.k.a. an assault rifle, a.k.a. what we call a ‘black’ gun.
Just as I wasn’t surprised that Scalia wrote the Heller opinion, so I wasn’t surprised that he based the opinion not on history, not on precedent, but on simple common sense. Because when it came to guns, what Scalia knew and what other SCOTUS justices probably didn’t know, was that in the fifty years since the Court had previously handed down a 2-Amendment ruling (U.S. v. Miller), the United States had gone from a country in which most firearms were long guns owned for hunting to handguns owned for personal defense. So when Scalia stated in Heller that keeping a loaded, unlocked handgun in the home had become an American ‘tradition,’ maybe the tradition was only thirty years old, but it had become standard lexicon for defining gun ownership nonetheless.
If you think that the Heller decision has unleashed a spate of 2nd-Amendment legal tests in the lower courts, just imagine what would have happened if Scalia and the SCOTUS had followed Miller and other precedents and declared that the 2nd Amendment didn’t protect private gun ownership at all. Such a decision would have unleashed a torrent of gun laws at the local and state levels reflecting the second big change that has occurred and has now also become an American tradition when we talk about guns.
What I am referring to is what I call the GVP tradition, which has become, for the first time in my long lifetime, a grass-roots, broad-based effort to bring some sanity to America’s love affair with guns. The GVP movement is stronger and more sustained than anyone could have imagined just a few years ago, and it will continue to develop momentum regardless of who sits on the High Court.
Feb 14, 2016 @ 10:23:11
Ok, it doesn’t matter whether a justice could tell the difference between a matchlock, flintlock, percussion lock, musket, rifle, machinegun, or washingmachine.
The reason for this is that the justice DOES need to work within precedent.
The precedent prior to Heller-McDonald was that the Second Amendment applied to congress’ power under Article I, Section 8, clause 16:
“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”
Cruickshank, Presser, and Miller all worked to that principle.
But that was not helpful to Scalia’s purpose, which was to invalidate DC’s gun laws.
The real issue is that the US Constitution is silent on the topic of “gun rights”. It is something that can be found in state constitutions. Here is a list full of examples where you can find explicit mentions of guns for personal uses:
www2.law.ucla.edu/volokh/beararms/statecon.htm
A good lawyer knows that when a law is silent on a topic, that topic is not covered. One cannot wiggle the language and history.
I should also add that since this topic is not covered under a constitution there is no reason that DC cannot ban all personal firearms while Kennesaw, GA would require all citizens excepting those who do not have religious or ethical reasons not to) to own a firearm.
But there is no right whatsoever under the US Constitution to own a firearm outside the “common defence” context.
So, Heller-McDonald can be wonderful. They can allow for Australian gun buybacks and gun laws.
But the real tragedy is that a judge made law, which is unconstitutional.
Feb 14, 2016 @ 10:27:55
BTW, there is nothing preventing the Feds from regulating firearms. In fact, it would make much more sense due to the Commerce Clause.
What I have found is the real issue in getting serious gun laws in the US is that most US legislators don’t have the balls to work to public welfare.
They work to their own welfare.
Feb 14, 2016 @ 11:00:29
Once again Mike gives us insights and ideas for civil discussion
Feb 14, 2016 @ 11:53:57
The “Castle Doctrine” is a right to have a suitable arm for home defense. It goes way back in English tradition as a common, auxiliary right. Whether it’s under the umbrella of the 2nd Amendment is not clear – not to me, anyway.
The Castle Doctrine right is very limited in scope, though it is an individual right. Militia service, and the right of militias to keep & bear arms, is an independent issue.
Based on crime statistics, good arguments can be made that exercising the Castle Doctrine makes a person (& their home/family) less safe. So, from a public safety standpoint, strict laws governing arms in the home is the best policy. However, a right is a right, and therefore in their decisions, judges must strike a sensible balance between public safety & traditional rights.