In the majority opinion of District of Columbia v. Heller, Scalia writes: “We also recognize another important limitation on the right to keep and carry arms … that the sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” Under Scalia’s reasoning, the sale of commonly used assault-type weapons cannot be prohibited. Which, of course, means the Bushmaster used at Sandy Point Elementary School to rip apart 20 very young grade-schoolers and 6 adults is protected by the 2nd Amendment. The Bushmaster is certainly in common use and for sale at your local Walmart.
I urge you to read the Heller majority opinion VERY closely (it’s not long): in its tautological and specious reasoning there’s little comfort for either gun advocates or gun violence prevention advocates. And any folks trying to create laws about firearms will find little to guide them. The ONLY 2nd-Amendment right recognized by SCOTUS is an individual right to possess a firearm unconnected to service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. In dicta, the Court listed many longstanding prohibitions and restrictions on firearms possession as being consistent with the Second Amendment.
Off the bench, Scalia has promised more rights to come, but it’s tough to know what direction he’s heading and/or which legal theories will guide him. Still, in recent public remarks, Scalia has said that any hand-held weapon might be protected by the 2nd (Scalia used a ‘hand-held rocket launcher’ as an example). The following are also designed to be hand-held so perhaps they too will be protected by the 2nd.
• shoulder-launched cruise missiles
• covert shoulder-launched Predators now coming on line
• briefcase/backpack nukes
• compact explosive devices (grenades, mortar shells, etc.)
• mines
• RPGs
• Stingers
• flamethrowers
• “mortar” rifles
• machine guns
• semi-automatic assault-style rifles
• fully automatic assault-style rifles
• .50 caliber armor-piercing sniper rifles
• GPS-guided rounds
etc.
One might wonder which of the above the Scalia Five would agree the 2nd Amendment covers. And don’t forget, the Scalia Five has given us fluid criteria: today’s unusual weapon becomes by common use a protected weapon; an assault-like rifle gets transformed by advertising into a home defense weapon. And by the way, these transformations are already underway:
Like the Mauser ’98 before it, the AR-15 has become the platform of choice for customization. User-friendly and easily equipped with the owner’s choice of sights, stocks and accessories, AR-15s are arguably the rifle most commonly kept for home protection. A large number of marksmanship schools offer classes that focus on using the AR-15 for personal protection.
When the Supreme Court struck down D.C.’s handgun ban in District of Columbia v. Heller (2008), it said that the Second Amendment protects firearms “in common use.” All of what I’ve said just goes to show that AR-15s fit that description—with room to spare.
Read more: http://www.gunsandammo.com/...
Common use? Self-defense? Arguably, the AR-15 already meets Scalia's criteria for 2nd-Amendment protection. At some point (and we may be well past it), the 2nd in the hands of the Scalia Five will make national suicide constitutional.
All of this is perfectly logical if the framers intended the 2nd to protect the people from the tyranny of the national and state governments. If those governments have incredibly lethal weapons, then the people must also have them; otherwise the people are outgunned. So there we have it. A theory that holds that, in addition to voting, laws, and amendments, the Constitution preserves the right of the people to violently overthrow the United States itself. If some of the people find the Federal Government tyrannical—perhaps because taxes are too high, perhaps because a specific Christian prayer can’t be forced on people of other faiths—then the people can take up their arms and start a second, third, fourth American Revolution. And in fact the majority opinion in Heller cites this theory (see 1. (b) below):
1. 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 [A well regulated militia being necessary to the security of a free state,], announces a purpose, but does not limit or expand the scope of the second part, the operative clause [the right of the people to keep and bear arms shall not be infringed]. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28. [emphasis mine]
The Scalia Five never explain how Heller 1.(b) comports with Article III, section 3 of the Constitution, which specifies that levying War against the United States is treason.
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The framers had their own theory, shaped in part by the American Revolution and in part by Shays’ Rebellion (see Jefferson's "Tree of Life" letter (1787) to his friend William Smith). The Constitution in Article Two, Section One, Clause Eight lays out the oath for the President: "I, __ __, do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Of course that oath carries within it the promise to defend the Constitution of the United States against all enemies, foreign and domestic. By 1861 the enemy was primarily domestic and the oaths of federal officials, employees and of state officials were changed to state the implicit: to “defend the Constitution of the United States against all enemies, foreign and domestic.” The foreign enemies are obvious enough, but who did the framers and later Americans consider domestic enemies?
In 1786, thousands of citizens in central and western Massachusetts (including many war veterans) shut down county courts to stop judicial hearings about state tax and debt collection. By 1787 the situation had escalated into full-blown armed insurrection, with the Shaysites attacking the state militia and attempting to seize the national Springfield Armory. In June most Shaysites had been killed, arrested, or scattered, a month after the founders first met in Philadelphia to convene the Constitutional Convention. Given the timing, Shays and his violent two-year domestic rebellion was much on their minds.
Hence the framers wrote the 2nd Amendment to protect the national and state governments FROM rebellious citizens. There’s no question that’s what the 2nd meant to President George Washington, who in 1794 called up militias (of about 14,000 citizens from four states) to suppress the Whiskey Rebellion. Once again, domestic disagreements had led to violence, this time by citizens who refused to pay whiskey taxes and who attacked agents of the national government. In Washington's time, the United States had the motivation and will to suppress violent resistance to its laws, to defend the United States from domestic enemies. Washington/Madison were not about to let sectional rebellions tear their new nation apart. Clearly the founders were anticipating the threat of domestic rebellion--treason in a word--when they wrote the Constitution and the Bill of Rights. That such treason was on the founders' minds is evidenced elsewhere in the Constitution as well; for example the Suspension Clause; Article 1, Section 9. "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it." Since its founding, the United States has faced any number of domestic enemies. And Lincoln also did not hesitate to execute his oath of office, an oath not to one state, region, or creed.
Throughout the history of the United States, various groups, including states themselves have turned to nullification, a theory that any part of the United States can vacate, nullify, make illegal federal laws and even the Constitution itself. In 1828 Vice President Calhoun wrote in the South Carolina Exposition and Protest that his home state of South Carolina had the right to "nullify"—declare void—the federal tariff legislation of 1828 and the right to nullify any federal laws that went against the interests of the state. Calhoun and other South Carolinians assumed they had a champion in President Andrew Jackson. After all Jackson was a tough, no-nonsense Westerner, a celebrated Indian and British fighter, a vigorous, iron-willed, champion of the common man; and more importantly a staunch defender of states’ rights and supporter of a small and limited federal government. They couldn’t have been more mistaken. During after-dinner toasts at the 1830 [Thomas] Jefferson Day Dinner, Robert Hayne (Senator, S.C.) began by toasting to "The Union of the States, and the Sovereignty of the States." Jackson then rose, prompting the other guests to do the same, raised his glass, and in a booming voice said, "Our federal Union: It must be preserved!" A few days later a visitor from South Carolina asked if Jackson had any message he wanted conveyed to his friends back in the state. Jackson replied:
Yes I have; please give my compliments to my friends in your State and say to them, that if a single drop of blood shall be shed there in opposition to the laws of the United States, I will hang the first man I can lay my hand on engaged in such treasonable conduct, upon the first tree I can reach.
Finally Jackson issued his Proclamation to the People of South Carolina, a long, detailed, steely ultimatum about the supremacy of federal law:
I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed.
The governor of South Carolina marshaled a force of 27,000 mounted minutemen and infantry and committed funds to arm them. Jackson ordered the U.S, Navy to reposition toward South Carolina and gathered a large force of U.S. troops to extract South Carolina from its state of “insurrection and treason." Only after Congress had authorized Jackson to subjugate South Carolina by force and a series of compromises had been worked out did the South Carolina Convention meet in 1833 and rescind its nullification ordinance.
And of course in the twentieth century, Presidents Eisenhower and Kennedy used military force to introduce Arkansas, Mississippi, and Alabama to the supremacy of federal law and the Constitution.
One of the latest attempts at nullification is Wyoming, which is on the verge of passing HB 0104, the “Firearm Protection Act”:
AN ACT relating to firearms; providing that any federal law which attempts to ban a semi-automatic firearm or to limit the size of a magazine of a firearm or other limitation on firearms in this state shall be unenforceable in Wyoming; providing a penalty; and providing for an effective date.
No public servant as defined in W.S. 6-5-101, or dealer selling any firearm in this state shall enforce or attempt to enforce any act, law, statute, rule or regulation of the United States government relating to a personal firearm, firearm accessory or ammunition that is owned or manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming.
Any official, agent or employee of the United States government who enforces or attempts to enforce any act, order, law, statute, rule or regulation of the United
States government upon a personal firearm, a firearm accessory or ammunition that is owned or manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming shall be guilty of a felony and, upon conviction, shall be subject to imprisonment for not less than one (1) year and one (1) day or more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both.
The attorney general may defend a citizen of Wyoming who is prosecuted by the United States government for violation of a federal law relating to the manufacture, sale, transfer or possession of a firearm, a firearm accessory or ammunition owned or manufactured and retained exclusively within the borders of Wyoming.
Any federal law, rule, regulation or order created or effective on or after January 1, 2013 shall be unenforceable within the borders of Wyoming if the law, rule, regulation or order attempts to:
(i) Ban or restrict ownership of a semi automatic firearm or any magazine of a firearm; or
(ii) Require any firearm, magazine or other firearm accessory to be registered in any manner.
One can only imagine Wyoming officials—armed or otherwise—trying to arrest members of the 101st Airborne and charging them with felonies. The potential for violence is not negligible in this scenario, and an armed campaign between Wyoming and the Armed Forces of the United States would be brief, brutal, and decisive.
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The historical pattern is as unmistakable as a bad dream: states unhappy with federal law and/or the Constitution of the United States have again and again invoked nullification, the ghost of a states’ rights theory that died with The Articles of Confederation. This ghost and Scalia’s present reading of the 2nd Amendment are a lethal combination.
The idea that citizens with rebellion on their minds should be guaranteed the right to keep and bear arms at least as lethal as those of the national government would have struck Washington as madness, as would nullification Confederation style. And so far no president, including Washington, has failed to honor his oath of office. Washington, Jackson, Lincoln, Eisenhower, Kennedy—none of them blinked when the time came to defend the Constitution against domestic enemies. Neither will the current president. Nor should we the people remain silent while nullification, the dark force of regionalism and strife, tries to twist the United States back into the misshapen, miserably failed Confederation, a political experiment which lasted less than eight years. Given the almost 225-year history of the Constitution, the results are in. The Constitution has won, hands-down, backed by presidents who kept their oath, the hundreds of thousands of Americans who gave their blood and lives defending it, and the hundreds of millions of citizens who see one nation, not 50, whenever the Stars and Stripes is raised.
