Tags
Heller, Judge William Young, Justice Antonin Scalia, Margot Cleveland, Massachusetts, second amendment, Strict Scrutiny, The Federalist
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.
This expatriate writer/professor has offered many times to teach the honorable Supreme Court Justices some English as a foreign language so that they may interpret the Second Amendment correctly – No Response. My offer still stands and for no fee not so ever.
I’d like to teach the good judge something, but with a baseball bat.
Mike, violence is in the American blood – You guys just cannot help it, can you?
It’s the Chicago way. Like our former president was taught.
Dear Mike P:
you can take the boy out of the Chicago political machine, but you can’t take the machine out of the boy.
Here is a picture of your president in action, violent boy: https://www.youtube.com/watch?v=Z5u-H9OQT2c
By all means, let the judge’s armed court officers surrender their weapons and allow the judge to mingle with the “commoners” so that he may enjoy the full privileges of being disarmed in an ever more lawless world.
Navyvet – Officers are ok to be armed to protect citizens from harm (as they should) not ordinary people like you and I.
And when those armed officers are not around, whom will you rely on for protection?
But that’s not the leftist narrative. See, we don’t need guns because the left will protect us. If you believe that got a bridge I’ll sell you, cheap.
Molon Labe!
Keep your powder dry and your faith in God.
Zaarin7-We do not need guns because they are designed to kill. Unless you love blood and killing, of what would you want to be protected? In fact, reality is that you would be in more danger. Left, right, or center has nothing to do with it. Read some statistics about the US VS the world
This has to be one of the most stupid reasons I have seen in awhile. Of course firearms are made for killing. They are used for many other legal activities besides killing in far greater numbers.
When I lived in the city I was still looking at an armed response of 7-10 minutes. What should I have done in a home invasion situation, cower in the closet? Or would armed response by myself and other family members been more appropriate? I choose the second option.
We moved to a very remote area of the state last month. Armed response is now 30-45 minutes away on a good day, probably closer to an hour plus. We have livestock to protect as well as ourselves. Calling the local sheriff to come dispatch a wild animal attacking our livestock would most likely be met with “take care of it yourself”. As I have always done in my life I prepare to care for myself. I don’t need the government to protect me, I’m quite capable of doing it. If it came to that I most likely wouldn’t call a government official to clean up the mess either as there are lots of hungry wild critters that would take care of the problem for me.
See Dr it’s like this, I don’t live in an ivory tower with an imagined superior intellect. I live in the real world where bad things can and do happen to good people. I train and prepare for many different scenarios and am quite proficient at taking care of myself and my family. The last thing I want to hear from some half-witted government official is “I’m from the government and I’m here to help”. Where I come from that statement may get you shot. And most of the time the shooter would be doing the rest of us a favor.
Dear JDS:
Please pardon me for this, but some people–certainly not regular readers–are terribly literally minded: No, JDS is not saying he’d actually shoot half-witted government officials just for saying foolish, ironic things. He’s merely expressing the displeasure of normal Americans at that kind of paternalistic thinking.
It is amazing how some insane-totally insane- Americans believe the NRA that their guns would protect them from the tyranny of the US government – Any other government, yes, but the United States??? You are insane. The United States can take the whole world in few hours; you, pathetic idiot, think you will fight it with your weapons? Then why not now? It is already a tyranny. You have a president-want-to-be who bought the White House and aims at destroying the American fiber and the Constitution and the Rule of Law — You shall never have worse tyranny than this you idiots,
I am Expatriate Writer (against guns, violence, NRA, and stupid American people like the commentators above) Dr. Sabri g. Bebawi
Still upset that Hillary lost? And the guy that had the job before him did a pretty good job of “destroying the American fiber and the Constitution and the rule of Law”. Were you just as outraged then?
Mike, you are a racist KKK sympathizer – You hated Obama because he was black – and I am far too intellectual to compare apples with oranges. We look at a man and evaluate him not in comparison to another person. Your president, possibly like you, is uneducated slime ball, liar criminal gangster. Possibly like you, will end up in prison. I do not like Hillary by the way. Did Obama touch the Constitution? Do you have a High School Diploma or are you a drop out? NRA, possibly a drop out. You are arguing with a 62 year old lawyer, professor, journalist, and a author. Drink your milk and go to sleep boy.
Dear Dr. Bebawi:
At SMM, we do not engage in name calling and rude attacks on others. We do not play the race card, and we are polite. If you wish to continue to comment here, please behave in the manner one might expect of all educated people.
You know how you know that the liberal that you’ve been arguing with has lost? When they call you “a racist KKK sympathizer”. Good lord man, you need to get laid. And to quote my former Marine Corps Drill Instructor, “You don’t know me motherfucker”. Good day Sir.
Education is not intelligence, and the only poster here who mentioned race is you.
Mike, I do indeed apologize- At times one may lose it. I, once again, apologize for the content of my message; I apologize to you and SMM.
Typical liberal PHD. Education does not infer common sense. Education does not infer intelligence. The good Dr. may think himself and educated man but a lot of us knuckle dragging NRA members see an overeducated idiot.
“The United States can take the whole world in few hours”.
See: United States vs. North Vietnam (1964-1975).
Huh? Dr. of what? America can take the whole world in a few hours?? How? Destroy it maybe? Expatriate Writer against violence? Yet you say thing like stupid Americans and you idiots in your rant? Your very words are violent. If you think this present time in America is tyranny go back to school at China or North Korea. Then get back to us.
My friend, yes, I did use rather inappropriate words but they were never meant to be violent. I did apologize to Mike. Let me say that if you do not know what tyranny is, you never will. Simply ask yourself what has happened this year to America’s Checks and Balances system? What has happened to the Justice Department (which is the Judicial Branch)? What has happened to America’s rule of law? I kindly ask that you question and evaluate what you hear or read; and remember that “silence is the voice of complacency.” —-Again, I do apologize for having used inappropriate words that I should know that such words invalidates the message.
Our ‘educated’ commenter states, “…the Justice Department (which is the Judicial Branch)…”
Well, that’s as factual as most of his ‘facts’.
As the other, less ‘educated’ readers here are no doubt aware, the Justice Department is part of the Executive Branch.
Thank you for the education; I meant the court system.
Dear PaulM:
Well, yes, but let’s just roll with it…
This entire stupid idea that “civilians cannot possess military weapons” must be stricken from all conversations. Civilians worldwide have always managed to obtain “military weapons” of many kinds and levels of power excluding only nuclear and biological weapons. So saying, “we will arrest and convict you and punish you if you do” is just government politicians’ blathering. No laws prevent crimes, laws depend on their ability only to catch “criminals” who they may or may not actually be able to capture AFTER the so-called “crime” has been committed.
In addition, two more things. One is that any level of government dare not criminalize a substantial part of the population by decree. Two is that no lower level of government may eliminate any part of the Bill of Rights or any of the later-adopted amendments. Those rights are all protected countrywide, just as the right not to be enslaved was finally established countrywide with a massive, bloody, four year war.
It is time, short of actual warfare, to find ways of crushing states like California and Massachusetts because they are in fact now Rogue States within our borders. This is serious shit, my friends.
The ultimate force is the force of the gun in modern terms. Mao knew that, so did Stalin and many other extremely dangerous men. But our rights can ultimately only be protected with the gun as well. We do not need to destroy whole cities to rid ourselves of these extremely dangerous men and women, we only need to protect our rights and that must be done one way or another.
As a resident of South Carolina, I must point out that “actual warfare” has been used before, and supposedly settled the question.
A few weeks ago I was listening to the news out of Augusta, GA. They had a story about the usual suspects wanting to re-name the Calhoun Expressway. Then a fawning story about California “standing up for its values” by nullifying Federal immigration law. Throw out the name, keep the policy. Not surprising, the same people that brought you Jim Crow now make sure we import enough cheap labor to continue to keep black folks down. And they once again want to nullify Federal law to accomplish their goal.
Actual episodic warfare is the norm. Such incidents as you describe are just provocations leading to that kind of end. Keep in mind that serial warfare is also fairly common, the United States may prove not to be an exception to that. Eventually, either one side is conquered and subjugated or both side become exhausted until the next round of provocations and war.
“keeping black people down” is just a political ploy by people who’re invested in being “downtrodden.” It’s the Old Martyrdom Myth in all of its obnoxious, toxic glory.
No one is actively subjugating blacks or anyone else. There are black people who are examples of great success and who are respected throughout the US. They stand out as the proof that some. blacks LOVE. to perpetuate the Martyrdom Myth.
Anyone who wants to perpetuate the Martyrdom Myth is dishonest and a phony, a self-made, self-proclaimed loser. And that goes very much for the Democratic Party and its 45 million members. They’re either the ones making themselves profits from the Martyrdom Myth or they’re the phony losers following and supporting the Myth Peddlers.
A Massachusetts judge deciding a case strictly on political grounds? How unsurprising. http://www.bostonherald.com/news/columnists/howie_carr/2018/04/carr_your_contributions_can_add_up_to_a_slot_in_the_hackerama
Dear friends, please review the Second Amendment carefully: “A well regulated militia……..protection of a free State……”
Yes, sir. It says the militia shall be well-regulated, but the right of the people to self-defense shall not be infringed. Perhaps an English lesson or two for you would be in order. I am glad you found your paradise overseas, if y’all make the US like every other country where does someone who does not wish to be taken care of like a child for his whole life go? There are so many countries that have the laws libs want, I’m glad you were honest enough to leave here and hope many more leftists follow your example.
As to comparing crime in other countries:
http://www.bbc.com/news/uk-england-london-43610936
Russia has some of the strictest gun laws in the world. Perhaps a comparison is in order:
http://www.nationmaster.com/country-info/compare/Russia/United-States/Crime
Dear Dr. Sabri:
I appreciate your apology and the appropriate change in tone. May I suggest you take the link in the article and read the Heller decision? That is the current state of the Second Amendment, albeit with some ambiguities. One really can’t discourse well and accurately on these issues without knowing that decision.
Thank you both, Clark and Mike, you are both articulate. For Clark, I am an English and Journalism professor and need no lessons in English, but thank you for the suggestion. In terms of political science, I would like, since you used the term “leftist,” that you understand the difference between Communism and Socialism – They are completely different and the United States Allies are all Socialists without an exception.
Mike, my position on the second Amendment, as a lawyer, a journalist and an English professor, has always been the same – we the people of the United States have no right to own guns and the interpretation of the Second Amendment is erroneous.
Thank you mike for accepting my apology. I do, indeed, like your blog.
Sabri
I want to make one thing clear, since some insults cannot be allowed to go unanswered. I am not a member of the Republican Party. I am an American Constitutional Conservative, there is no political party that represents me. I hope the latter fact changes soon.
To my friend Clark Carter, though I said I would not comment here again, your post about “some insults cannot be allowed to go unanswered” is quite intelligent. I am glad that some of us here consider describing one as a Republican is an insult. Nothing is more pleasing to me than that for it is indeed an insult and I have always meant it to be an insult. Prescribing to Republicanism is not any different than prescribing to the most evil of ideology.
Again, if this is insulting to anyone, I have no apology to provide. This is a one journalist opinion, I respect yours.
Finally, I thank Mike McDaniel for this admirable effort he has taken upon himself and I want him to know that this expatriate has utmost respect for him and what he does.
Signing off for the second time,
Expatriate Writer Dr. Sabri g. Bebawi (by the way for those who might think I am a moslem or Islamist or something g. stands for George.)
Reblogged this on The zombie apocalypse survival homestead.
Heh! A troll. No brain not so ever.
My dear friend, Mobiuswolf, just like your president, a person with few rude adjectives. “troll” “No Brain” – Have you read how your president-want-to-be calls any one who disagrees with him?
lol good one. I’ve got lots of adjectives, rude and otherwise, but I hadn’t used any yet. You sure that word means what you think it means?
I think I shall stop here. I thank all of those who commented. My friends here are obviously Republicans and with all dues respect, though no respect is due, a Republican is one who would steal a blind man’s dinner and claims that it is OK because he is not better than God who made the man blind in the first place. (A Parisian waiter told me that now) – Good bye and thank you Mike – sorry for leaving your great site but not sorry for not communicating with American Republicans.
Sabri
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