Supreme Court appears to give states, localities green light on gun controls
I would argue that the Washington Post, the LA Times and USA Today were giving it a run for its money but now with the internet, I wonder how relevant the NYT is anymore.
New York, generally speaking is a place full of people who are ignorant about guns and that ignorance leads to irrational fears. The editorial seems to be talking about banning (and confiscating) weapons, particularly assault weapons.
The editorial pretends that there is no regulation of guns:
“No right is unlimited and immune from reasonable regulation”
So right now, guns are about the most heavily regulated product on the market. There are limits to who can sell them, who can buy them and who can possess them. There are laws limiting your right to own some types of weapons and even some accessories. There are laws that limit how you can carry them and how you can store them. There are laws that limit our ability to import them and to export them. There are laws limiting the ability to carry them across state lines and to make them in your garage. There are a shitload of other laws that i am probably missing but suffice it to say there are a shitload of laws already in place.
I wonder how much reasonable regulation the new York Times would take on the first amendment.
The editorial goes on to say that some weapons are to describe AR-15s as "slightly modified combat rifles. Sure I suppose, that’s right. And a further slight modification would make them inoperable altogether. The difference between a machine gun and a rifle that fires one bullet per trigger pull is so profound that to call it a slight modification displays an ocean of ignorance. They identify the fact that the previous assault weapons ban was totally retarded in that it used cosmetic and ergonomic features to identify prohibited guns and they think they can do a better job. Maybe they can but what it will come down to is a magazine cap. EVERYTHING else you see on an AR-15 that is not cosmetic or ergonomic have been present in hunting rifles for decades.
Obviously they feel very strongly about something they obviously don’t seem to know very much about. This was the first front page editorial since 1920, they should have done a better job.
Generally speaking, I think the only gun deaths we should be considering as a cost of private and legal ownership of guns are:
- accidental deaths; and
- gun murders by people who are legally allowed to buy a gun.
Including other types of gun deaths is like including all car fatalities when discussing drunk driving.
For more on my last post (#61), see pages 12-17 here:
There is no write-up for the 7-2 majority decision, but the view of the majority, stated in the dissent, seems plausible to me:
When tourists enter the US Supreme Court, they have to go through a metal detector. This tells us how most justices really feel about guns. People who are more afraid of being shot by an intruder, than they are cheered by the prospect of an armed citizenry shooting back, are unlikely to take an expansive view of the second amendment. Taking this into account, as well as Justice Thomas’s dissent, I think that any gun control measure congressional democrats are likely to favor would withstand constitutional scrutiny.
Well, not a bad question. Generally there are almost no restrictions on owning swords. You dont have to register them, or pass a test. True, some states like CA have some ridiculous rules against stuff like belt-buckle knives, lipstick knives and switchblades, but these result in few arrests. Few people care about them, either.
(Just a mild request- dudes we have quite a few Gun Control threads, maybe we could stick with swords, etc for this one?)
My point is that the right itself is what’s important. The reason for the right is just a side issue. We have no written explanation of intent, for example, about why the First Amendment includes Freedom of the Press. Maybe its intent was to make sure the electorate was exposed to a variety of opinions on political issues. Or maybe Franklin slipped it in there to ensure business for the printing trade. Either way, it doesn’t matter - the right exists regardless of why it exists.
This is an analysis that is shockingly weak.
There was no “7-2 majority decision.” This was a denial of certiorari, not a decision. I can, as it also happens, point to congressional Democrats’ measures that have failed constitutional scrutiny, which further undercuts your attempt at analysis.
Are you criticizing me, or Justice Thomas?
Thomas is the one who says that the rest of the court (excluding Scalia) is “relegating the 2nd Amendment to a second-class right.” He the one who says that, by 7-2, the court “flouts two of our Second Amendment precedents,” those obviously being Heller and McDonald. He’s the one who says that, given the lack of willingness to take this case, the “Second Amendment guarantees nothing.”
Having a split decision when deciding against taking a case is, I believe, common. Writing a dissent in those cases is, AFAIK, uncommon. If Scalia and Thomas thought this was a temporary setback on the march to secure nation-wide gun rights of the type found in red states, I think they would have held their rhetorical fire until the next gun case was fully argued. But since the rest of the Supreme Court is, as they see it, unwilling to continue in the Heller/McDonald direction, they decided to share with us the situation.
This directly relates to the thread title. The Supreme Court, by a 5-4 margin, sees a right to keep your arms in your house, but the evidence is that they are OK with existing local limits on the types of guns allowed, and where they can be carried.
A couple of things.
Is there a split in the circuits? Is there a circuit court ANYWHERE that thinks that a ban on a particular type of rifle I unconstitutional? Just to clear things up for everyone?
Sometimes lack of clarity is exactly what the court is looking for, especially in controversial matters.
The court frequently lets controversial issues fester until the controversy becomes well developed and the court can make a better judgment.
Personally I think the second amendment is subject to intermediate scrutiny and must therefore:
(1) Is restriction within the constitutional power of government?
Clearly this is a product and is subject to the commerce clause.
(2) Does restriction further important or substantial governmental interest?
In what way does a restriction on one type of rifle (which is responsible for such a small percentage of gun deaths) further a substantial government interest (I can see the argument for magazine caps but even there we are only talking about mass shootings)?
(3) Is the governmental interest unrelated to the suppression of the second amendment?
I don’t see how banning such a narrow category of firearms is related to the suppression of the right to keep and bear arms (regardless of the motives of the proponents).
(4) Is the restriction narrowly tailored – no greater than necessary?
If it passes the second criteria It doesn’t pass the third. What makes assault weapons different than other firearms is that they frequently use 30 round magazines. So all you really want to do is cap magazine sizes. When you BOTH cap magazine sizes and ban assault weapons, I think you fail this test even if you pass the second one.
(5) whether the restriction leaves open ample opportunities to exercise the second amendment.
If banning assault weapons is ALL you do, then this is not a problem but if you have a complex scheme of gun control that severely restricts access to firearms for the common citizen…
And yet they wrote Heller and McDonald.
The FIRST time the commerce clause failed in recent memory was a gun control law. There once was a federal law that prohibited guns within 100 feet of a school. Up until this point almost every law ever imagined was declared constitutional under the commerce clause. And for the first time in a long time, the supreme court said that congress did not have authority to pass a law. A gun control law.
There are of things that Michael Bloomberg would like to do that the court would find unconstitutional.
Its rhetoric. Thomas is trying to portray the assault weapons bans as clear violations of the principles set forth in Heller and McDonald and they are not. They may be unconstitutional for other reasons but they are a separate issue largely related to the level of scrutiny we apply to second amendment cases.
You.
But you are the one that tries to transform the denial of certiorari into a decision on the merits.
And what basis does your “thinking” have?
The denial of a cert can rest on many, many grounds. Your idea that it presages a Supreme Court “unwilling to continue,” is not defensible based on a denial of cert. Accepting cert and deciding in favor of the restrictions would be the way the Court would signal what you’re thinking.
I agree with this sentence. It is not defensible based on denial of cert.
It is defensible based on the statement of eyewitness Clarence Thomas. The concurrence of another eyewitness, Antonin Scalia, makes it more defensible yet.
Of course, eyewitnesses can get it wrong. If, in the next couple years, some of the same justices who voted to deny a hearing for Friedman v. Highland Park (the case in question) vote for the gun culture position in some other case, yesterday’s dissent will, in retrospect, read like it was written by Chicken Little.
What possible basis do you have to characterize a judge’s dissent from a decision to not grant certiorari as an “eyewitness” account?
When, in the history of the nation, prior to your calling it a “statement of [an] eyewitness” has anyone else ever thus characterized such a dissent?
Thomas is not an eye witness, he is merely hyperventilating about not taking a case. he claims that it is against their normal practice but he is wrong. It is very normal practice. It would be against their normal practice to not take a case if a lower court ignored clear precedent but no such clear precedent exists. this case is asking the court to establish he standard of review and the court is not ready to do that yet. Thomas wants to rush the issue because right now it look like we would use intermediate scrutiny and that would lead to the collapse of state and local gun control regimes across the country and put some federal ones at risk. That is why those two are so eager to hear the case because right now if you forced the issue, the gun rights side would win.
Thomas knows how the other justices feel about the second amendment. So with all due respect, I’m going to go by his report on the willingness of most justices to enforce the second amendment rather than your own.
The statement of yours I quote above is speculation. I could just as well speculate that Kennedy’s mild preference for gun rights has eroded.
Here’s someone on your side commenting on the pattern was were seeing even before the latest failure to accept a gun case:
And the best thing about this tactic is that when the Supreme Court acts to strike down some of these restrictions, you’ll blame Thomas for being wrong, and accept no blame yourself for misunderstanding the situation.
The individual right to own a firearm is not in the plain text of the US Constitution; and may actually be considered contrary to the literal meaning of the Second Amendment (which considers a “well-regulated militia … necessary to the security of a free state”).
The “right to bear arms” seems to have been pulled out of context and misapplied to individual persons, where it became part of the “dumb guy” version of constitutional law, and then, sadly, one of those things everybody “knows.” So now we may be stuck with it, because it’s assumed to be in there.
“Living document,” everybody!
Cecil Adams appears to subscribe to the “dumb guy” interpretation.
Also:
I thought the Printz vs. US decision, which found portions of the Brady law unconstitutional, relied on the commerce clause. Am I incorrect?
Edit: Or rather it was the defense that relied on the commerce clause, and failed.