For all the talk about the ‘enshrinement’ of 2nd-Amendment ‘rights’ in the Heller decision, and the fact that America is truly exceptional because of free access to guns, our friends Eric Ruben and Joseph Blocher have just published a detailed article which shows that at both the Federal and state levels, precious little has changed since 2008. In fact, while there has been a plethora of litigation designed to test various local and state laws against what Ruben and Blocher refer to as the ‘sea-change’ of Heller, the success rate of these challenges has been less than 10%.
Most of the failures to use the 2nd Amendment’s gun ownership ‘right’ to cover all kinds of other gun ‘rights’ lies in the fact that Scalia’s decision made it absolutely clear that even though Americans now would be Constitutionally protected if they decided to keep a handgun in their home, this in no way constrains the government from regulating gun ownership, as long as the basic idea of personal ownership is not disturbed.
But even the fact that someone can own a gun doesn’t mean the government is unable to define the terms and conditions under which that gun will be owned. Ruben and Blocher explore this issue in a deft and prescient way, the latter because their article clearly anticipates more 2nd Amendment litigation to come, this article thus becoming a convenient road map both for what has happened to Heller since 2008, as well as what may happen further down the road.
What I find interesting in all the post-Heller litigation and discussions is the extent to which the debate invariably turns on the meaning and application of the words ‘keep’ and ‘bear,’ while virtually no attention is paid at all to the word ‘arms.’ Somehow, a basic distinction made by Scalia in Heller between military arms on the one hand, and arms ‘in common use’ on the other, seems to have disappeared from view. And yet, understanding the role that these allegedly different types of weapons play in the gun violence which causes 125,000 deaths and injuries each year is, for me, the game that really counts.
Gun-nut Nation has spent God knows how much time, money and hot air defending the idea that all guns should be considered to be ‘in common use’ as long as they are not designed to fire in full-auto, which would make them military weapons obviously too lethal to be in civilian hands. They have even invented a new type of gun, the Modern Sporting Rifle, which may look like a weapon of war, but is allegedly no different from any other type of sporting gun that Grandpa carried into the woods. Now the fact that the M4 battle rifle can be set to fire in semi-auto mode; oh well, I guess when a trooper decides that the tactical situation requires that he shoot one round every time he pulls the trigger, obviously he’s now using a sporting gun. Yea, right.
Even though we are shocked and frightened by the mass shootings like Parkland and Las Vegas where the shooter used an AR-15, the reason we have gun violence is because of all those lovely handguns floating around. And believe it or not, most of those guns were first designed and manufactured for military use. Gaston Glock first got into gun manufacturing by making a pistol for the Austrian Army – the current Glock sold in every gun shop hasn’t changed one bit. Ditto the new Sig pistol that has just been adopted as the official U.S. military sidearm, the company celebrated this windfall by making and releasing 50,000 models for commercial sale.
We are the only country which makes no distinction between guns used by the military and guns kept in private homes, yet the difference is clearly acknowledged in the Heller decision, with the latter types considered worthy of Constitutional protection but the former not protected at all.
Want to end gun violence? Take the 2nd Amendment and what Antonin Scalia said it really means.
Jun 12, 2018 @ 21:00:17
At any public gun range, AR type long guns are at least half of what one would see… far outnumbering whatever is second most common. If ARs do not qualify as , in common use, I wonder what would.
Yes, some silly appellate judge in cali could not sort that out, but every week ARs become more and more common in the free parts of the US.
Jun 13, 2018 @ 10:03:49
It also explains why gun control by nature is self-propagating. Here in Massachusetts we have a completely illegal on every level ban on “Assault Weapons” (And I need to use quotes on that because the AG is on record saying she will NEVER release her methods of determining what box-fed semi-auto rifles are legal or illegal to own or sell….and I say COMPLETELY illegal because there is absolutely zero verbiage in the laws that the AG is interpreting here that make some of the distinctions she is on record for, such as her exemptions of Rimfire rifles), because of this and our onerous licensing system (That Mike profits off of, I might add) we don’t have many casual gun owners in this state. In Maine I knew lots of people who had 1-3 guns, here in Mass because you have to shell out $100 every 5 years to keep ONE gun, I don’t know any people who have an LTC and LESS than 5 guns. But there are less of us because those numbers don’t add up for a lot of people, and when you aren’t exercising your rights you’re not as uncomfortable when somebody goes to take them away.
So outside the areas with these horrible gun control laws, everything Mike barks about is WILDLY unpopular, because people CAN own ARs, and they DO own ARs, especially when you don’t need to drop $800 for a Colt anymore, when a $500 S&W or Ruger will be just as good.
And these people know that that gun, as cool as it looks, it is not a “Weapon of War”.
Mike knows it too, but I don’t know why, and he sure isn’t going to fess up.
Jun 13, 2018 @ 12:13:39
It may stick in some craws, including mine at times, but Mike and that research paper pretty much reflect judicial reality in the United States with respect to Heller and the 2A. So unless SCOTUS takes up the issue again (and right now that has not happened–The Supremes have let circuit court rulings stand), the interpretation of what is dangerous and unusual vs. in common use comes down against ARs or whatever we want to call them.
As I said in my last post in the comments, I spent a day out in the woods shooting the hell out of one of the finer (or at least more expensive) of black rifles with my brothers and one of my nephews. It was a heck of a lot of fun and no schoolchildren, pets, co-workers, or other living creatures were hurt in the making of our fun.
There should be a middle way on this.