As Cristian Farias ably notes, the errant paragraph of Justice Scalia’s Heller opinion holds the door open to, well, wild interpretation. And as Cristian further ably notes, the errant paragraph means that there is no need to repeal the Second Amendment, no matter how many youngsters take to the street or how much David Hogg, et al., are enjoying their 15 minutes of fame.
In a passage that has become a thorn in the side of gun-rights enthusiasts, Scalia warned that people shouldn’t read too much into the fundamental right that he had just helped announce. Among other caveats and restrictions, Scalia wrote, “long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” were still fair game.
There are two rather huge holes in this paragraph, the first being that Scalia offers no principled basis for it, in contrast with the rest of the decision holding the Second Amendment to be a fundamental individual right. It’s assumed to be a compromise, to soften the blow of the holding by not undoing the entire regulatory scheme for firearms.
The second huge hole is that it provides neither hard parameters (the errant paragraph begins with “for example,” meaning it’s not exhaustive) or conceptual parameters to provide at least guidance as to what’s subject to regulation and why. Compromise may make a decision more palatable for the moment, but often creates far more problems down the road when there are no principles upon which to rely.
This gave rise to the Fourth Circuit’s en banc ruling that AR-15 rifles could be regulated.
The full court, 14 judges in all, reconsidered the ruling and ended up reversing course, declaring that the right to bear arms doesn’t extend to firearms that otherwise belong in the battlefield. “Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage,” U.S. Circuit Judge Robert King wrote in the decision. Weapons of war.
A decade ago, I would have had no reason to doubt this conclusion. Not being a gun guy, AR-15s look scary, like the sort of rifle Rambo would use. Who needs such a scary looking gun, I might have said. But then, that would have been ignorance talking, as many have since informed me. It’s all too easy to talk ignorantly to other people who are similarly ignorant.
But the Supreme Court failed to take on the Fourth Circuit’s ruling, which does not (despite more foolish talk) mean they approved of it, but that they didn’t reverse it, leaving it the law of the circuit. Nowhere in Scalia’s errant paragraph does he say that semiautomatic rifles, a phrase that lends itself to significant misunderstanding, are subject to regulation. Then again, he didn’t say they weren’t, either.
Are they “weapons of war”? That phrase, too, sounds very scary, and also very unnecessary for the many uses to which firearms are put. Hunting. Self-defense. Revolution against a tyrannical government, not so much, but whether they will work well against tanks and drones, the Afghanistan experience notwithstanding, isn’t so clear. But it’s just a phrase. Does a semiautomatic rifle become a weapon of war because it looks a lot like an automatic military rifle, even though the similarities end with appearance?
Former Supreme Court Justice John Paul Stevens takes it a step further.
Rarely in my lifetime have I seen the type of civic engagement schoolchildren and their supporters demonstrated in Washington and other major cities throughout the country this past Saturday. These demonstrations demand our respect. They reveal the broad public support for legislation to minimize the risk of mass killings of schoolchildren and others in our society.
The support may well be broad, but broad enough? Civic engagement by kids is wonderful, but they aren’t exactly the most knowledgeable people around when it comes to politics. Mass killings of schoolchildren and others is horrible, but it’s also an extremely low-level risk, even though it, like the AR-15, is very scary and captures our fears more than far more likely risks.
But Justice Stevens extrapolates from the children’s march that there is sufficient political support to deal with the rest of the Heller decision, all but the errant paragraph.
That support is a clear sign to lawmakers to enact legislation prohibiting civilian ownership of semiautomatic weapons, increasing the minimum age to buy a gun from 18 to 21 years old, and establishing more comprehensive background checks on all purchasers of firearms. But the demonstrators should seek more effective and more lasting reform. They should demand a repeal of the Second Amendment.
Note the part about “civilian ownership of semiautomatic weapons,” as if they are military weapons? So he doesn’t get it anymore than I did before I learned better. But what he does get is that the errant paragraph only creates confusion, and leaves the door swinging in both directions, whether for increased permissible restrictions or, should the Supreme Court finally take charge of its jurisprudence in a principled way, greater protection of the fundamental right.
Overturning that decision via a constitutional amendment to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.
Is he suggesting repeal of the Second Amendment would be easily accomplished or would, in one fell swoop, do the trick? If the former, that’s nuts. If the latter, sure, but it’s a doomed effort, both because there remains vast support for the Second Amendment and, should that Pandora’s Box be opened, there is no doubt that the rest of the Bill of Rights would be on the table as well.
But why call for such an extreme, even radical, solution?
That simple but dramatic action would move Saturday’s marchers closer to their objective than any other possible reform. It would eliminate the only legal rule that protects sellers of firearms in the United States — unlike every other market in the world. It would make our schoolchildren safer than they have been since 2008 and honor the memories of the many, indeed far too many, victims of recent gun violence.
Americans do so love drama, and this emotional, if factually dubious, pitch by a former Supreme Court justice adds to it, as Justice Stevens surely knew it would. But we’re facing these questions because of Nino’s errant paragraph, the one Cristian notes will allow regulation or not of scary looking guns.
As for the children of Marjory Stoneman Douglas High School, reluctant as I am to speak ill of any youngster who has suffered trauma, their cries carry no more intellectual heft than any other child. Drama makes for great TV, but poor policy. Justice Scalia could have resolved this, but instead left us with this mess to clean up. That’s scary too.
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SHG,
Great post.
Justice Scalia is remembered for his pithy saying that the rule of law is the law of rules. Except, I suggest, in Heller.
The “let’s all be reasonable” approach he adopted is like a cosmic black hole. It sucks in all the light around it. We have no earthly method of testing its limits.
All the best.
RGK
PS The death panel will have to take my .22 caliber rifle, with high capacity shorts used solely for killing bastard bunnies, from my cold dead hands. Or something.
I assume that Scalia was too smart not to realize what his errant paragraph would do, but as I so often argue, the favorite play at One First is to punt. I want a refund.
I find the contention that the 2nd Amendment doesn’t protect “weapons of war” bizarre. What use is a militia without weapons of war? Americans have owned arms similar, if not identical, to the standard-issue service weapon of the age since before the constitution was written. That state of affairs continued for 200 years with nobody thinking there was anything wrong with this. It didn’t change when semi-automatics were introduced around the turn of the 20th century. It didn’t change when the AR-15 was introduced in the 1960s. It only suddenly became an issue in the 1980s, when it emerged as the Democratic counterpoint to the Republicans’ “moral crusade” against abortion.
To those who point to Scalia’s errant paragraph as constitutional justification for their gun control scheme du jour, I ask a simple question: what is the core right the 2nd Amendment protects? What is it the government may not do, no matter how much they might think it’s a good idea? Surely, a law that only restricts government from doing what it isn’t inclined to do is no different from no law at all. Are we to suppose that the framers of the Bill of Rights went through all their debates and ratifications, their editing and re-writing, to enshrine in the constitution an amendment with no more legal meaning than “I like fish sticks?”
As Justice Stevens correctly noted, the “core right of the 2nd Amendment” was very different before Heller, and everybody (myself included) understood that it had nothing to do with an individual fundamental right.
This reflects a constitutional interpretation problem, in contrast to all those nice folks who find it all so easy to understand because they understand it their way. That’s why the errant paragraph gave rise to such a mess. If you’re going to change the interpretation, change the interpretation. Don’t just throw a bomb into the middle and see who survives later.
So what was the “core right of the 2nd Amendment” before Heller, and how was it different from the “I like fish sticks” theory?
I referred to Justice Stevens op-ed for a reason. Read it there and stop asking me stupid questions. I lived on fish sticks in college. Without them, I would be dead.
Mr. Stevens wrote:
“In 1939 the Supreme Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that weapon had no reasonable relation to the preservation or efficiency of a “well regulated militia.””
Justice McReynolds, in that unanimous ruling, wrote:
“In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia,/i>, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.” <US v Miller, 307 US 174, 179 (1939)
(italics mine)
And within the body of the opinion is a litany of colonial and state laws which required individuals to keep and make available firearms in case the militia was summoned. (“Clauses intended to insure the possession of arms and ammunition by all who were subject to military service appear in all the important enactments concerning military affairs.” p 181)
I am reminded of the time Justice Brennan was astonished to hear the argument that only works “utterly without redeeming social value” were unprotected by the 1st Amendment. Yes, I could be engaged in hyperbole. But people, including (especially?) lawyers, do tend to see what they wish is there.
As for retired Justice Stevens’s persuasive authority, he also opined that Old Glory is so special that physical damage to it could lawfully be made criminal, the 1st Amendment notwithstanding, and wrote Clinton v Jones. Nobody’s perfect.
Funny thing about that Court; it overruled Plessy too. Ever wonder how it’s possible that four members of the Supreme Court could be so very wrong?
My point is that Stevens, writing for The New York Times, stretched the holding in Miller to support his argument. He doesn’t want an individual right to own firearms, thus, for him, there is not one. Miller, according to Stevens, stands not for the proposition that short-barrelled shotguns might be forbidden, subject, perhaps, to the contingency that such a weapon might be shown to be conducive to a “well-regulated militia,” but that there is no federal right to any firearm.
Whether a consitutional right to own a firearm is a good or bad thing is a separate question from whether there is well-established law or history on the subject. As for my Justice Brennan anecdote, I suggest comparing his 1957 majority opinion in Roth with Justice Harlan’s concurring and dissenting opinion in the same case. Justice Harlan wrote that calling a work “obscene” and ending there was question-begging, and I submit “militia” is no more a magic word than is “obscene.” Would that Nino been as careful (and thoughtful) as Harlan II.
Tummy rubs generally.
Does that mean I can carry my 12 in sawed off shotgun now? Since the court has ruled that it has no place or use as a military weapon, and now only military weapons are not covered by the 2nd. So everything else is fair game for civilians, correct?
I know, it doesn’t work that way. And like every other screaming teapot, the anti-gun crowd isn’t paying attention to the inconsistency’s of their various statements and platforms.
But still…
What does this contribute? Or do you want to join the crazies in need of catharsis by saying the dumbest thing that comes to mind?
The Miller decision is also a result of its rather strange procedural history. Mr. Miller’s indictment was dismissed by the District Court and Miller thereafter disappeared (apparently hiding from his own gang members against whom he had testified). There was no brief filed on behalf of Miller and no one argued on his behalf in front of the Supreme Court, and there was no record from which the Court could decide the question of whether a sawed off shotgun was a militia weapon.
I suppose one could argue that under the rationale of Miller, an AR 15 would not be protected, but an M4 carbine would be covered by the 2nd Amendment.
In later years, Justice Stevens spent far more time at home in Boca Raton than in D.C. He missed an opportunity at home. If he wandered to the swamps and prairies a mere 20 miles west, he would have seen how semi-automatic rifles are really used.
Passing amendments is hard, so it’s virtually impossible to repeal them. Repealing something from the Bill of Rights is fantasy-land. He knows that, so it makes me wonder how seriously he took what he said. I say lots of stupid stuff, but it’s mostly in my head. But there’s also this: “It would eliminate the only legal rule that protects sellers of firearms in the United States.” Really, Mr. Justice?
What oracle gets to decide which guns are “military?” My shotgun is far more effective close-up. It also qualifies as “scary,” but so do all weapons.
The problem isn’t guns, Mr. Justice–it’s assholes and crazy people with guns. Laws already forbid their ownership. I’m looking at my CCL license. It was issued by my state’s Department of Agriculture. That’s right, Mr. Justice, the agency that decides how much water and fertilizer can be used on farms and ranches. But the Department of Agriculture doesn’t talk to mental health professionals, even for non- CCL holders, so crazy isn’t always identified. In fact, it’s mostly self-reported. How crazy is that?
“how semi-automatic rifles are really used”
No true Irishman…or did you mean to write “properly used”?
I’m no soup.
Nope–they’re used improperly all the time, really. It’s Florida!
Dearest Skink, this is it. So much for knowledge of weapons when you’re staring down the barrel. AR-15s are relatively easy to use, accurate, lethal, and can have large capacity magazines. That does me so much good when being shot at by someone who bought one to shoot at people or who just stole one of Pop’s poorly secured five. That’s scarier than a big black gun with rails.
Stare down the barrel of any gun. They’re all scary when they’re pointed at you.
You mention opening the door on other rights. I dont think it’s even possible to repeal the 2nd Amendment without repealing others.
Even if it could get through the repeal process millions of Americans will blow off a repeal (especialy before states rule).
Without a repeal of the 4th Amendment how would the government get the guns?
We don’t really need any kind of repeal process for the 4th Amendment. The courts are doing a stellar job on their own.
That only works on people society views as bad or other and this would be several orders of magnitude greater.
Even if this could happens non-violently how many millions of law suits would pop up for other stuff found while police were “looking” for guns.
Well, Stevens’s opinion in his op ed is that it isn’t different, that the 2nd Amendment means precisely nothing:
Certainly I’ve never heard anybody suggest the 2nd Amendment grants any new powers or authorities to either level of government. So if it neither adds nor restricts powers, it’s hard to see how it would do anything at all. If that was the uniform understanding that existed before Heller, the only reinterpretation that took place was that instead of meaning nothing, it should now mean “something”. Scalia apparently didn’t feel like explaining what that “something” was.
Not that, you dolt (and use the reply button, you double dolt). His explanation of how the 2d A was interpreted before Heller. If you can’t stay on topic long enough to respond, then why are you wasting my bandwidth with this nonsense.
The Supreme Court never is more political than when it is trying not to seem political.
As the “least dangerous branch,” they need to protect the perception of their integrity. Dodging their responsibility seems to be the favored method of being controversially uncontroversial.
“Dodging their responsibility seems to be the favored method of being controversially uncontroversial.”
The Nazgul in a nutshell. 229 years of perfidy.
Civic engagement by kids is wonderful, but they aren’t exactly the most knowledgeable people around when it comes to politics.
How many adults do you think read Heller? Most Americans can’t name a single SCOTUS justice.
Adults being clueless doesn’t make children more knowledgeable. We just went through this the other day. Let’s try to steer away from logical fallacies.
“Weapons of war.” Bagpipes will be next, and we’ll end up playing outlawed tunes on outlawed pipes.
Again.
“Weapon of war” is a very flexible definition. I carried a Remington 870 (black synthetic, spraypainted tan because the Canadian Army is…frugal) on patrol in Kandahar. It still had a Walmart barcode sticker on it.
Going after the 2nd Amendment at the federal level is fantasy, as already pointed out. But assuming they accomplished that miracle, a whole lot of state constitutions have a similar right written in.
Of course, if you are adult male in the U.S.A. you were likely part of the unorganized militia at the state and federal level at some point. And women too in some states.