You can’t unring a bell
by J. Kb
While stumping for her mother, Chelsea Clinton talked a little bit about gun control and the Supreme Court. Her conjecture is that the Court was inconsistent in how it interpreted the Second Amendment and that was all Justice Scalia’s fault.
I’m not exactly sure what inconsistencies Chelsea Clinton is referring to. There have been three notable SCOTUS decisions on the issue of gun control in the last several years: DC v. Heller, McDonald v. Chicago, and Caetano v. Massachusetts. The first two (Heller and McDonald) upheld the right to keep and bear arms as an individual right that belongs to the people and applies to both the Federal Government and the states. Caetano, while not exactly being about guns (the case was about possession of a TASER), established that the 2A applies to “bearable arms, even those that were not in existence at the time of the founding.” It should be noted that Caetano was both unanimous and decided after Scalia’s death.
The way Court has treated the 2A and gun rights actually seems pretty consistent since 2008: the people have the right to keep and bear arms, even if those arms weren’t around when the Founding Fathers were drafting the Constitution.
I may be persuaded to agree that MAYBE the majority opinion on in Heller was a little muddled, since the Court didn’t completely reverse Miller.
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.
Heller did establish, however, that handguns are in common use and therefore protected and a total ban on them is unconstitutional.
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,’ would fail constitutional muster… 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.
What is more interesting is that Heller paved the way to overturn any future AWB as the guns targeted by those bans (semi-auto facsimiles of military rifles) are the most popular long guns sold in America, and therefore are definitely in common usage. Combining Heller and Caetano – protection of guns in common use and protection of arms not known by our founders – is the big medicine to knock out virtually every argument for an AWB.
Since 2008, because of Heller and Mc.Donald, America has seen a tidal wave of gun rights expansions. All 50 states now have a CCW provision and many states are adopting constitutinal carry. Illinois, which was the last holdout, was forced into adopting CCW by the 7th Circuit Court of Appeals, who very explicit quoted McDonald in their decision. There has been some push back against gun rights in the very bluest of states, but at the national level, we are winning.
This is where Chelsea Clinton’s statement becomes troubling. The implication in her statement being (at least IMO) is that if Hillary can stack the court in her favor – fill Scalia’s seat with a liberal justice – the Supreme Court could uphold gun control legislation if a challenge to a piece of gun control legislation were to make up to the Court. Chelsea seems to believe that her mother could somehow persuade SCOUTS to effectively reverse if not completely overturn Heller, McDonald, and Caetano. I don’t know how Hillary would be able to do that, then again, I don’t know how Hillary has managed to get away to doing everything she has done, so there.
My point is, SCOUTS has rung the liberty bell of gun rights three times. They cannot unring it. They cannot go back and say “all those gun rights that we affirmed were in the Constitution, we’re taking them away and giving power to the state.” More importantly, If you want America to survive a Hillary presidency, I wouldn’t even think about trying to unring that bell. The American people would not stand the complete reversal of America’s trajectory on gun rights.
Given all of Obama’s executive actions, America is approaching a tipping point where we don’t care what comes down from DC, we’re just going to ignore it. There have been dozens of law enforcement agencies across America that have sworn no to uphold any executive action on gun control. A revolution doesn’t require gunfire. It just requires the majority of people so stop obeying the law. You literally can’t arrest us all, especially if local law enforcement is revolting. I could almost guarantee you that if Hillary coerced SCOTUS into reversing Heller and McDonald, the majority of Americans would say something to the effect of “Well, Queen Bitch Clinton managed to scare five traitorous cowards into tearing up the Constitution. F*ck them. F*ck her. F*ck that decision, were not listening anymore.”
Chelsea’s little “if we put one more liberal on SCOTUS and my mom can get everything she wants” daydream, is a dangerous fantasy. If replacing one associate justice is all it takes to undo the Constitution, than the future of this country is on thin ice.
On a side note. While I was doing research on this post I had a thought. The majority opinion could, conceivably, overturn some parts of the NFA if the Court ever accepted the case.
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.
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. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
The way I read that is: The militia clause allows for the possession of machine guns as military arms necessary for a militia of the people, furthermore, machine guns were in common use by civilians at one time, which is EXACTLY WHY the NFA was passed. Even if the machine gun clause of the NFA was upheld by SCOTUS on challenge, I believe that the Hughes Amendment could be overturned. The government’s refusal to issue new tax stamps is a de facto ban on arms necessary for a militia, and therefore unconstitutional.
January 21, 2017
January 21, 2017