Yesterday I listened to Michael Smerconish interview CNN’s Joan Biskupic on the 2nd Amendment. Smerconish is an expert on everything, Biskupic is only an expert on law and legal affairs. If you think that either of these two experts knows anything about the 2nd Amendment, as Grandpa would say, oy zuch en vai (read: they don’t know sh*t.)
They went on and on about how the 2nd Amendment covered guns that were kept at home but were used when the gun owner had to show up for militia duty. Since we no longer have a militia (except for the Proud Boys), the 2nd Amendment gives Constitutional protection to privately-owned guns kept in the home which have no connection to militia service at all.
Smerconish and Biskupic are convinced that the 2008 Heller decision is definitive in protecting private gun ownership, hence, the only way we can control guns is either to get rid of the 2nd Amendment or change the ideological balance of the Supreme Court. Unfortunately, either strategy would take a long time to achieve its intended results.
There’s only one little problem. Neither Smerconish nor Biskupic really understand what the Heller decision is all about. They spent an entire segment talking about issues which have little, if anything to do with why we suffer from 125,000 intentional gun injuries every year or what we should do to reduce those injuries so that we no longer refer to gun violence as a ‘public health threat.’
The Heller opinion which allegedly protects private ownership of guns turns on how Scalia defined this phrase: “the right of the people to keep and bear arms shall not be infringed.” He defines this phrase on Page 8 of his opinion: “The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.”
Note the words, ‘military capacity.’ According to Scalia, guns that are used by the military do not (read: not) qualify for any Constitutional protection at all. Not when the 2nd Amendment was written, not since.
I am still waiting for any of the so-called legal experts on either side of the 2nd-Amendment debate to demonstrate that they possess even the slightest degree of knowledge about guns. For that matter, I’m still waiting for any advocate on either side of the gun debate to demonstrate a shred of such knowledge at all.
Because if such knowledge existed within or without the various groups, including all the so-called public health experts who do what they refer to as ‘evidence-based research’ on guns, they would have to confront the fact (note the word ‘fact’) that the guns which are used to commit 95% of all intentional gun injuries happen to be guns which were designed specifically for military use.
And not only were guns manufactured by companies like Glock, Sig, Beretta, and Colt designed specifically for military applications, in fact (note again the word ‘fact’) they are carried today by military units throughout the world, in particular by troops deployed by the good, old, U.S.A.
The United States is the only country in the entire world which gives law-abiding residents free access to bottom-loading, semi-automatic guns, which happen to be the design features incorporated into every military gun. We don’t suffer a gun violence rate 7 to 20 times higher than any other OECD country because we own 300 million guns. We suffer 125,000-gun injuries every year because we can buy, sell, and transfer guns which have absolutely no sporting use at all.
And by the way, before you start ramping up your concern about 2nd-Amendment ‘rights,’ let me break the news to you gently, okay? There happen to be several jurisdictions which have passed laws which forbid ownership of military weapons, in this case the AR-15, and these laws have been upheld by that terribly conservative Supreme Court.
I’m not a legal expert by any means. But I was taught to read English in the 3rd grade. So, I know what the Heller opinion written by Scalia says and doesn’t say.
I also know a little bit about guns, and I’d be happy to share that knowledge with Smerconish or Biskupic if they would like to drop by my shop.
Apr 20, 2021 @ 14:12:37
I know something about guns. I was an expert marksman in the U.S. Marine Corps, and I’m a combat veteran of the Vietnam War, decorated for “courage and composure under fire.” I’m also a board certified emergency physician and the president of Americans Against Gun Violence, the only national gun violence prevention organization in the United States that openly advocates overturning the Supreme Court’s rogue 2008 Heller decision and adopting stringent gun control laws in the United States comparable to the laws in every other high income democratic country in the world.
Mike’s partly right about the Second Amendment. Even the rogue Heller decision doesn’t prohibit banning military style weapons. But Scalia’s majority opinion in Heller is largely nonsense. Heller reversed over two centuries of legal precedent, including four prior Supreme Court decisions (U.S. v. Cruikshank in 1876, Presser v. Illinois in 1886, U.S. v. Miller in 1939, and Lewis v. U.S. in 1980) in ruling that the Second Amendment confers any kind of individual right to gun ownership unrelated to service in a well regulated militia. In Heller, the narrow 5 member majority endorsed an interpretation of the Second Amendment that the late Supreme Court Chief Justice Warren Burger had called “one of the greatest pieces of fraud – I repeat the word ‘fraud’ – on the American public by special interest groups that I have ever seen in my lifetime.” But the Heller decision is worse than a fraud. It’s literally a death sentence for tens of thousands of U.S. civilians every year.
Apr 20, 2021 @ 14:48:33
Please stay in your lane, doctor. You’re just another antigunner. While I thank you for your service, it is irrelevant in the gun debate and doesn’t give you any additional credibility. Antigun is antigun.
You call the Heller decision “rouge.” It isn’t. You just don’t like the result, so you’re complaining about it. It is true that Heller reversed a longstanding legal precedent, but that doesn’t make it any less legitimate. I’m sure that plenty former slave owners tried to make the same argument in 1865 when the 13th Amendment was ratified. Society is simply evolving in a way that you don’t like.
Warren Burger’s complaint is irrelevant now. Antigun folks love to cite that quote of his but it doesn’t matter anymore. His time is done now. With 6/9 SCOTUS justices being pro 2A, they very well may take a hatchet to many of our remaining gun laws.
Apr 20, 2021 @ 20:56:55
DC v Heller and McDonald v Chicago were actually very friendly to gun regulation with this being he actual holding (That’s the bit after the words “we hold” everything else is called “dicta” which isn’t really legal precedent. Dicta is the courts thought process in reaching the holding)::
“In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights{1}, the District must permit him to register his handgun{2} and must issue him a license to carry it in the home [3}.”
I am pointing out three measures which this holding finds Constitutionally permissible:
1. Background check
2. registration
3. Licensing
These are what people are talking about when they mention reasonable restrictions.
And they are enshrined in both holdings Heller and McDonald. Oh, yeah. Here’s what Heller said about regulating firearms:
“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. . Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Footnote 26 made it clear that list was not exhaustive.
Actually, Warren Berger’s quote is relevant as is Justice William O. Douglas, who was on the court when Miller was decided, did a gloss of this Second Amendment jurisprudence in his dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972).
Heller and McDonald can go overboard and rewrite the Second Amendment to give it more spread than intended. The Amendment addresses congress; power under USC Article I, Section 8, Clause 16 to arm the militia. McDonald is silly because it not only creates law, but misinterprets the amendment. Quite a few State Constitutions actually grant an expanded “Second Amendment” right.
So, definitely “rogue” since it totally breaks from precedent and very bad law. The amusing thing is that the source of the court’s ability to perform judicial review is not the US Constitution, but something called Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60, 1803 U.S. LEXIS 352 [1803], specifically addressed the issue of clauses in the constitution with the opposite result. Marbury stated that ” The subsequent part of the section is mere surplusage — is entirely without meaning — if such is to be the construction”. And “It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.”
Apr 21, 2021 @ 15:18:36
Heller did not overturn Miller and frankly, anyone can call a SCOTUS opinion “rogue” when they disagree with it. I know a lot of people who feel the same way about Roe v Wade.
To wit, from Miller “…The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time…(snip) ‘In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms…”
What Miller decided was in reference to a short barreled shotgun not registered under the NFA. Miller said that firearms inappropriate to service in a militia were not of the sort that “these men” were expected to show up with “supplied by themselves and in common use at the time…”. It implies service in a militia, but also asserts that every able bodied male should have a gun. If that isn’t an individual right and responsibility, I don’t know what is.
Contrary to Mike’s comment about “military grade ammo”, that should be protected as well as full size sidarms. To steal from Miller, “…In the absence of any evidence tending to show that possession or use of a Ruger LC9, M&P Shield Plus, or Beretta Nano at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument…”
Apr 20, 2021 @ 15:14:54
According to the Southern Poverty Law Center there are as many as 334 militia groups or as few as 276 depending on the year. Some of these groups are the 3 Percenters, Not Fucking Around Coalition, Hutaree, and many more (the Proud Boys fit in there somewhere). So, to say that we no longer have a militia, as my grandchildren would say…N O T.
I agree that many so-called legal experts on either side of the 2nd Amendment debate demonstrate a limited degree of knowledge about guns. Some even say that a Glock 17 holds 16 rounds of ammunition. I guess technically that’s correct, it holds 16 rounds or it can hold 9 rounds or even 1 round. But according to the maker of the Glock 17, it has a capacity of 17 rounds in the standard magazine.
Remember: “But words do matter” as Barack Obama himself told us, back in 2008.
I was looking at statistics the other day and found that there is a staggering statistic that every year there are over 90,000 deaths due to medical malpractice alone in the United States. Compare that with the 39,707 firearm deaths in 2019. Looks to me that we have a problem with both medical doctors and firearms.
Apr 21, 2021 @ 12:17:25
“guns that are used by the military do not (read: not) qualify for any Constitutional protection at all. Not when the 2nd Amendment was written, not since…”
Considering that EVERY TYPE of firearm has been used by Militaries at some point in time like the Muzzleloaders in use when the Constitution was written, but also Leverguns, Revolvers, Bolt action, Pump Shotguns, etc….
What exactly would be left for the Constitution to protect?