At WRSA there is an interesting discussion on the Declaration of Independence, Constitution and Bill of Rights. Here is a snippet. I recognized that, despite the cries of today’s Constitutionalists about the Divine inspiration of the US Constitution and the accompanying Bill of Rights (USC/BoR), both of the foundational documents of American governance were drafted by mere humans based on the political accommodations necessary at the time (e.g., chattel slavery) and had no effective [read more]
While it’s not a done deal yet, there’s a good chance that we may finally be receiving a final decision from the Supreme Court on the question of so called “assault weapons” bans. Back in December, gun rights activists were largely disappointed when SCOTUS decided they would not hear an appeal to Illinois’ assault weapons ban, allowing a lower court ruling in favor of the law to stand. At the time, I speculated that they were waiting for more lower courts to weigh in on similar challenges around the country to see if there was some sort of consensus or if the states were divided and in need of clarification from above.
This week that question may have been answered. The 4th Circuit, hearing a Maryland case, went the other way, overturning a ban on AR-15 style rifles and expanded capacity magazines. (Baltimore Sun)
In a 2-1 decision applauded by gun rights advocates, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit concluded that the semiautomatic weapons and high-capacity magazines banned by Maryland’s Firearm Safety Act “are in common use by law-abiding citizens.” As a result, they don’t fall under the exception to the right to bear arms that applies to “unusual” weapons such as machine guns and hand grenades, the court said.
This apparent contradiction between the 7th Circuit Court’s ruling in Friedman v. City of Highland Park and the 4th’s ruling in Maryland has likely provided enough contrast for the Supremes to take up the question.
If they take it up, I predict they will sustain the constitutionality of such a ban. First of all, look at the makeup of the court. It has five outright communists (including Kennedy), a collectivist in conservative dress (Roberts), two more fairly unreliable “conservatives” (Scalia and Alito), and only one true conservative (Clarence Thomas).
Second, they won’t even have to turn to their own proclivities to find their decision. It’s embedded in Heller itself.
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. See, e.g., Sheldon , in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For exam ple, 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. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). 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. 26 We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indict able Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford , 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874). It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause …
You can read the rest for yourself. Scalia isn’t here arguing for the constitutionality of owning M-16s. He is attempting to answer an objection before it is cast. He is implicitly accepting the legitimacy of banning M-16s.
I’ve said it before. While many in the gun community celebrated Heller, I say it was perhaps in the top two sinful abominations leaving the pens of the supreme court, second only to Roe v. Wade.
The seeds of acceptance of an “assault weapons” ban are right there in Heller. They will support the legitimacy of said bans. And of course, we won’t listen to them because they jettisoned their own legitimacy long ago.