Skip to main content

View Diary: Scalia’s 2nd, Nullification, and National Suicide (30 comments)

Comment Preferences

  •  The thing about Heller is that the conservative (5+ / 0-)

    reasoning is more consistent with an assault weapons ban than the liberal reasoning. The liberals interpreted the Second Amendment in light of its explicitly stated historical purpose. Scalia's reasoning specifically rejects that purpose, and says that that purpose has no bearing on the scope of the amendment. He uses post-enactment developments to create this self-defense theory of the amendment, and then he pulls 'facts' from his skull that 'the home is where the need for self-defense is most acute' and 'the handgun is the most popular method of self-defense.'

    Scalia specifically mentions that the weapons most useful in a military context, "M-16s and the like" as he says, are not protected by the Second Amendment. The Conservatives reached a compromise. Their priority was to protect handguns. In doing that, they had to craft their reasoning around a self-defense interpretation, in contradistinction to the militia-based interpretation.

    It is a strange outcome that if the Second Amendment were interpreted correctly, as a militia-focused right, then an assault rifle ban would be out of the question. Instead, with Scalia's contorted reasoning, he has been hoisted by his own petard, and left the door open for an assault ban.

    •  In part, it depends on what is meant by assault (0+ / 0-)

      weapon.  To make a point of clarification so that we are operating on the same framework, the civilian AR15 is not a military style weapon and only resembles one in appearance, not functionality, mostly by virtue of lacking a select fire switch.  With that clarification,  the ar15 is also commonly used by civilian police for the purpose of defense of self and others.  Combined with the number of them in the hands of civilians, it can hardly be argued that it doesn't meat the common use standard.

      Second, one needs to evaluate the term militia.  Frequently this is misinterpreted to mean national guard.  In deed, the national guard is a form of militia, a formal militia.  The court rulings also refer to an informal, or citizen militia and state that it is equally valid.   Other rulings have also stated that weapons that may be readily used for a militia purpose are allowed under the 2nd, which was justification for the NFA.  The net result is that one can not equate handgun is the only viable gun for self defense. (references see US v. Miller)

      The courts have also said that a ban on a "class of arms" would fail to meet constitutionality.

      To also address the point about in the home, since undoubtedly this will come up.  Off hand, I am not certain if SCOTUS has ruled on carry outside of the home, though I do know that this was addressed by the 7th circuit which declared that outside the home is a stronger right and need of self defense than inside of the home, which at least sets a legal precedent.

      The bottom line is that as I read it, an AWB, especially as they've been bandied about, is not likely to stand up to the rulings that have taken place subsequent to the last ban.

      •  Definition of Assault Weapon (1+ / 0-)
        Recommended by:
        Sharon Wraight

        I think most Americans would be surprised at the Federal definition of and specifications for assault weapons. In fact the gun industry and other interested parties note that the differences between the AK-15 and the M-16 are mostly cosmetic.  Those who have had extensive experience with the M-16 see the AK-15, the so-called "civilian" version of the M-16, as being almost as deadly.  Former Gen. Stanley McChrystal, who led the war in Afghanistan, endorsed strong gun control laws recently, including military assault weapons and civilian assault-like weapons:

        I  spent a career carrying typically either an M16 or an M4 Carbine. An M4 Carbine fires a .223 caliber round which is 5.56 mm at about 3000 feet per second. When it hits a human body, the effects are devastating. It’s designed to do that.  That’s what our soldiers ought to carry. I personally don’t think there’s any need for that kind of weaponry on the streets and particularly around the schools in America.

        We’ve got to take a serious look—I understand everyone’s desire to have whatever they want—but we’ve got to protect our children, we’ve got to protect our police, we’ve got to protect our population. Serious action is necessary. Sometimes we talk about very limited actions on the edges and I just don’t think that’s enough.

        I'd appreciate links to federal court decisions that find "a ban on a 'class of arms' would fail to meet constitutionality." I'm fairly certain SCOTUS hasn't spoken to the "class of arms" issue.  Thanks.
         
        •  Here is the statement from DC v. Miller (1+ / 0-)
          Recommended by:
          annecros

          that says banning a class of arms fails legitimacy:

          (3) The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster.
          In that particular case, the ban on the class of handguns was overruled.  Could a ban on the class of "assault weapons" be viewed the same way?  

          With respect to the General's statements, just about any self defense round, when it hits the body is devastating.  I also found it interesting how he phrased ".223 caliber round which is 5.56 mm" as the .223 / 556 are one of the most popular rounds used in that gun (models also take the 7.62x56 and .308 which are MORE powerful).  This is interesting for two reasons: one the .223 isn't considered a very powerful round and it is commonly used for small varmint and target practice.  The military has access to 556 Nato (Nato green tip) which I am pretty certain has a solid core, much like armor piercing.  From a technical standpoint, I have to wonder if his statement was carefully worded to convey a precise meaning.   However, I also understand the .223 soft point to be considered a decent self defense round.  I don't believe that the military isn't allowed to use soft point per the Geneva Convention.

          •  It's which class has been overwhelmingly chosen (1+ / 0-)
            Recommended by:
            Sharon Wraight

            Majority opinion, D.C. v Heller, pp. 56-57

            As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right.  The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose.  The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400
            would fail constitutional muster.
            Here's how I read this section of Heller.

            1.The inherent right of self-defense has been central to the Second Amendment right.

            2. Handguns have been overwhelmingly chosen by American society for self-defense.

            3. Home is where the need for defense of self, family, and property is most acute.

            Hence handguns cannot be banned from one's home.  Assault-style weapons differ: they have not been overwhelmingly chosen by American society for self-defense. Seems to me the entire class of assault-style weapons is not yet protected.  But once again the Scalia Five have given us a fluid criterion.  Given a huge spike in sales of assault-style weapons—perhaps advertised as the ultimate development in home self-defense—a future SCOTUS (using this criterion) would also throw assault-style weapons bans out with the handguns.

            At least that's my reading.  Thanks for the question.

            •  In many ways it is unfortunate that SCOTUS has (0+ / 0-)

              continued to remain vague, issue only narrow rulings, and add a lot of weasel words.  The whole question gets more interesting than just Heller.  For example, from Printz v. United States

              In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense."
              In other words, weapons that DON'T serve a military purpose are not protected under the 2nd.  Does this mean that "military style" weapons would be protected?
              Also from Lewis v. United States
              (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia")
              Again, it is inverted logic, but does the inverse hold?  Remember that militia also includes able bodied civilians, not the national guard.

              As I said, I am not certain about federal rulings in regard to carry outside of the home, though I think that this may be forthcoming thanks in part to Chicago which was the last state to prohibit public carry.  This may be an area that falls to the states, which would make sense in light of the may issue, shall issue, and reciprocity conundrum.  

              My best guess is that should a ruling on a ban take place that it could very well point to a previous ruling instead of addressing the problem head on.

              One thing is for certain, we are guaranteed continued debate and controversy regardless of any court rulings.

              •  Patience or a need to act (0+ / 0-)

                "In many ways it is unfortunate that SCOTUS has continued to remain vague, issue only narrow rulings, and add a lot of weasel words."

                Couldn't agree more.  The issue of assault-style weapons needs to be addressed clearly and as broadly as possible.  Scalia says he doesn't address issues not tied to cases and that the rest of us need to be patient with this process.  Well, patience is one thing, but blowing off (literally) the faces of 20 grade-schoolers in 5 to 10 minutes demands a process less snail-like.  Scalia was perfectly happy to snap up Bush v. Gore because "national circumstances required it."  And current national circumstances, more than those in 2000, clearly require a much faster process of judicial review.  With all the killing, it's beyond belief the Scalia Five have chosen to take the slow, incremental road.

      •  Definition of "Assault Weapon" (1+ / 0-)
        Recommended by:
        Sharon Wraight

        I think most of us (I certainly was) would be surprised at how the AWB of 1994 defines assault weapon.  That the AH-15 doesn't fall into the category shows the legislative effectiveness of the NRA.

        Former Gen. Stanley McChrystal, who led the war in Afghanistan, recently endorsed strong gun control laws (from @janestreet) and did not exclude the civilian versions of military weapons.  A round hitting a human body has the same devastating results, whether fired from and M-16 or an AK-15.

        I spent a career carrying typically either an M16 or an M4 Carbine. An M4 Carbine fires a .223 caliber round which is 5.56 mm at about 3000 feet per second. When it hits a human body, the effects are devastating. It’s designed for that.  That’s what our soldiers ought to carry. I personally don’t think there’s any need for that kind of weaponry on the streets and particularly around the schools in America.

        We’ve got to take a serious look—I understand everyone’s desire to have whatever they want—but we’ve got to protect our children, we’ve got to protect our police, we’ve got to protect our population,” McChrystal said. “Serious action is necessary. Sometimes we talk about very limited actions on the edges and I just don’t think that’s enough.

        I'd appreciate your pointing to the federal court rulings that "that a ban on a 'class of arms' would fail to meet constitutionality."  I'm pretty sure SCOTUS has yet weighed in on the issue but I could have missed it.  Thanks.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site