Back in February of 2013, I wrote The Courts Won’t Let The Government destroy The Second Amendment…Right? That particular article focused on the fact that the Second Amendment hung on a 5/4 Supreme Court majority. It still does. A recent development in Massachusetts reminds us that government may not be the primary danger. The courts may, alone, do away with the Second Amendment As Margot Cleveland writes at The Federalist:
On Thursday [o4-05-18], federal district court judge William Young upheld Massachusetts’ ‘assault-weapon’ ban against a Second Amendment challenge brought by several individual plaintiffs, two firearm dealers, and the Gun Owners’ Action League. Young’s decision in Worman v. Healey represents the first time a court has ruled on the constitutionality of the Massachusetts statute. The Ronald Reagan appointee’s analysis follows the Fourth Circuit Court of Appeals’ approach in Kolbe v. Hogan, in upholding Maryland’s ban of semiautomatic rifles and large-capacity detachable magazines.
Young’s reasoning thus suffers from the same flaws found in Kolbe. As I explained at the time, the Fourth Circuit in Kolbe concluded ‘that the banned assault weapons and large-capacity magazines are not constitutionally protected arms’ based on the majority’s misreading of the Supreme Court’s conclusion in Heller.
Kolbe ignored the rather obvious difference between the AR-15 and AK-47 and the M-16 rifles: The M-16 is an automatic weapon, while the AR-15 and AK-47 are semi-automatic. In contrast, Young acknowledged the difference, but brushed it aside: ‘[t]he AR-15 design is almost identical to the M16, except for the mode of firing.’ But the mode of firing is not some mere trifle. It distinguishes between automatic weapons, which are essentially illegal, and semi-automatic rifles, which are among the most popular weapons in the United States.
Judge Young’s brushing aside of the factor that actually makes all the difference is no mere oversight. Since the Supreme Court’s 2008 Heller decision, the court has not granted cert in any other case that might clear up the great many related questions left untouched by Heller.
The Supreme Court’s indifference seems to have emboldened Young, who added some passive-aggressive pokes in his decision. Young’s decision liberally quoted the late Supreme Court Justice Antonin Scalia, the author of Heller and a hero to conservatives and Second Amendment enthusiasts.”
Young’s closer missed the mark, though, as the National Rifle Association quickly pointed out: ‘It is outrageous that Judge Young is taking advantage of the fact that Justice Scalia is unable to refute such a claim. Justice Scalia’s position on the question of whether the AR-15 is protected by the Second Amendment is clear. In the 2015 Friedman v. City of Highland Park case, Justice Scalia joined a dissent which stated that the decision by millions of Americans to own AR-style rifles for lawful purposes ‘is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.
This is the defining factor of so-called “assault weapon” bans. Proponents are loath to clearly define such weapons, because legally defensible definitions would limit their ability to ban an entire class of firearms: semi-automatic weapons. Normally, statutes are “void for vagueness” when a man of reasonable intelligence could not know which conduct is unlawful and which is not, or in the case of gun bans, which guns are banned and which are lawful. Not so in Massachusetts.
Even without a circuit split, though, Worman may provide the ideal scenario to pry open the doors to the Supreme Court because the Massachusetts case involves a statute that the state’s attorney general has interpreted so broadly it would seemingly bar virtually all semi-automatic firearms. The plaintiffs in Worman attempted to challenge this interpretation of the ‘assault-weapon’ ban, which came in the form of a July 20, 2016, ‘Enforcement Notice.’
In that notice, the attorney general explained that a weapon is a prohibited ‘copy or duplicate’ of an assault weapon, and thus barred by Massachusetts’ law, if it is ‘a semiautomatic rifle or handgun that was manufactured or subsequently configured with an ability to accept a detachable magazine,’ or ‘a semiautomatic shotgun’ and has internal functional components substantially similar to the assault weapons identified in the state statute or ‘has a receiver that is the same or interchangeable with the receiver’ of one of the listed assault weapons.
This is essentially a blanket ban on every semiautomatic pistol or rifle with a removable magazine–most–and because the law does not indulge in definitions beyond that vague section, many more.
The Worman plaintiffs argued that this ‘Enforcement Notice’ impermissibly expanded the scope of the Massachusetts’ statute and made the law so vague that citizens could not reasonably understand what weapons are banned. The plaintiffs illustrated this problem by asking a state’s witness whether a Smith and Wesson MP-15 .22 would qualify as a ‘copy or duplicate,’ and thus be a banned assault weapon. The government’s response? That it is not the position of the attorney general to answer questions about whether the Smith and Wesson MP-15 .22 would be considered a ‘copy or duplicate.
The Attorney General of any state is, like all law enforcement officials, responsible for informing the public–interpreting any law–to ensure compliance and the cooperation of a law-abiding populace, but the populace must know what is illegal to be law-abiding. That the Massachusetts AG’s Office refuses indicates their desire to seize essentially any weapon they please, and to prosecute gun owners doing their best to obey the law.
Massachusetts has not yet demonstrated an intention to actively seek out and seize the suddenly criminalized guns of the law abiding, but that is always the next step. Connecticut had just this intention in 2014, until I wrote Connecticut: The Coming Storm, which had a small hand in exposing their unconstitutional, thug-state desires, and forced them to beat a hasty, but thus far lasting, retreat. Their anti-gun laws remain on the books, but they are not actively seizing the guns of citizens.
Here’s the section of Judge Young’s decision to which Cleveland refers:
The AR-15 and its analogs, along with large capacity magazines, are simply not weapons within the original meaning of the individual constitutional right to ‘bear Arms.
With that sentence, Judge Young wipes away the largest class of popular, common rifles in America for all the citizens of Massachusetts. He deals with the question of whether AR-15s and “large capacity magazines”—whatever that might be–are lawful by simply declaring them outside the protect of the Constitution. It must feel good to have that kind of awe-inspiring power. To paraphrase Mel Brooks: “It’s good to be dah judge.” And dah judge continued:
Both their general acceptance and their regulation, if any, are policy matters not for courts, but left to the people directly thought their elected representatives. In the absence of federal legislation, Massachusetts is free to ban these weapons and large capacity magazines. Other states are equally free to leave them unregulated and available to their law-abiding citizens. These policy matters are simply not of constitutional moment. Americans are not afraid of bumptious, raucous, and robust debate about these matters. We call it democracy.
Justice Scalia would be proud.
At once, Judge Young declares he has the power to ban an entire class of common weapons, but smugly claims banning such things is entirely up to the legislatures, taunting a far better judge–and man. That’s democracy folks! Too bad. Justice Scalia would be proud! Everything Justice Scalia ever wrote on the subject suggests he would be, rather, appalled. One might be tempted to think Young is being democratic in saying the citizens of some states may enjoy the Second Amendment, but for the citizens of others, their wise legislators may simply suspend what portions of the constitution they prefer, for the public good, of course. After all, you redneck idiots, you elected them!
Judge Young is apparently unaware that states may give their citizens more rights that the Constitution provides, but not fewer. Or he simply doesn’t care, and with his smug slap at Justice Scalia, is laughing at us all.
Let us examine some of the text of the Heller case:
JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 42–43. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.
Unfortunately, it has been ten years since Heller, and the Court has declined several opportunities to deal with some portions of that “entire field.” In the meantime, in some parts of America, citizens are deprived of their property, liberty, and in some cases, their lives. That’s what the Bill of Rights was written to prevent.
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.
(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
In other words, Heller affirms the individual right of Americans to keep and beararms particularly useful for militia service, such as semiautomatic versions of the military’s fully automatic M16, M4 and variants, yet the prefatory clause does not limit that right only to such weapons.
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. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large.
That plain languages does not seem to comport well with Judge Young’s imperial edict, does it gentle readers?
It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. … Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
Would any rational person then suggest that since the Court specifically said handguns are protected, long guns are not, that handguns are sufficient for all purposes? Judge Young is making just that edict. Yet remember that Judge Young is upholding a vague ban on any semiautomatic weapon that accepts a detachable magazine, and on “large capacity magazines,” without defining what that means. The most popular and numerous handguns in America today are semiautomatics, a great many with magazines holding more than 10 rounds, which seems to be the current gun banner cut off number. Presumably, if they establish that number, magazines will continue to shrink in the future.
Another avenue of attack is to degrade the “strict scrutiny” standard of review, which is the most stringent standard applied to fundamental, unalienable, express rights. Heller spoke to this too:
After an exhaustive discussion of the arguments for and against gun control, JUSTICE BREYER arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.
Judge Young’s standard appears to be little more than personal whim. He doesn’t like an entire class of firearms, a technology more than a century old, so he simply declares them outside the protection of the Constitution. With a single sentence, he removes the most common, popular and effective rifles and handguns from circulation.
Thus do we see, gentle readers, the importance of even lower level federal judges. The Supreme Court may, one day, clarify this issue, but if it is at the usual glacial pace of such things it could be decades, even a century–it took more than two centuries for Heller–before even portions of the undecided issues are decided. Is there a right to open carry? To concealed carry? What limitations on either or both are constitutionally permissible? May guns that scare progressives be banned outright? What constitutes a “large capacity magazine?” Can entire classes of firearms based on nothing more specific than action type be banned? Must firearms laws be written clearly and definitively? These are only a few of the outstanding issues.
And in the meantime, his majesty, Judge William Young, laughs at Antonin Scalia, one of liberty’s greatest champions, and the author of the Heller decision. It’s good to be dah judge.