UNLIMITED CAPACITY FOR ERROR: THE UNCONSTITUTIONAL ATTACK ON CITIZENS’ POSSESSION OF SEMI-AUTOMATIC FIREARMS AND LARGE CAPACITY MAGAZINES
Sad to say for all concerned, there were more than a few mass shootings in the United States in 2018. The numbers of dead and injured in the worst of these incidents in 2018 (and in prior years) and the targeting of school children have incited anti-gun public outrage, which has been further whipped up by sensational media coverage and opportunistic anti-gun propaganda from the usual suspects on the left. This has enabled anti-gun politicians, riding this latest wave of impassioned (but misdirected) public sentiment, to enact laws banning so-called assault weapons (semi-automatic rifles and handguns that accept large capacity magazines), and large capacity magazines themselves, typically defined as magazines that hold more than 10 rounds of ammunition (“LCMs”). As of June 2018, in the uproar following these mass shootings, eight states, the District of Columbia, and at least two local jurisdictions passed or expanded existing bans on assault weapons. Nine states, the District of Columbia, and at least three local jurisdictions passed or expanded legislation banning the sale and/or ownership of large capacity magazines and placing limits on the maximum number of rounds that a magazine may hold.
Whether these statutes violate the Second Amendment presents a fundamental civil rights issue, one that a number of federal circuit courts of appeal have mishandled. The controversy over so-called assault weapons and LCMs brings into sharp focus an issue so sensitive that almost no one wants to step forward and address it – that is, the framers’ main purpose in protecting the right to keep and bear arms.
Let’s take a short Second Amendment quiz. Did the framers include the Second Amendment in the Bill of Rights (a) to ensure that citizens would be able to defend themselves in their homes? Did they include it so that (b)citizens would be able to defend themselves against attack outside their homes? Or did they have an even greater (and fundamental) political issue in mind – i.e., (c) the citizens’ ability to resist the tyranny of their own government? The correct answer, of course, is (d), all of the above, as the Supreme Court explained in District of Columbia v. Heller, 554 U.S. 570, 584, 589, 594, 597-99, 617-18, 628-29, 635-36 (2008) (self-defense in the home, at 594, 628-29, 635-36; self-defense outside the home, at 584, 594; resistance to government tyranny, at 597-99, 617-18).
In Heller, the Supreme Court explained that while most citizens undoubtedly thought that the individual’s right to keep and bear arms was more important for self-defense and hunting than for maintenance of individual freedom, “[d]uring the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. . . . Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people.” 554 U.S. at 598-99. The Court further explained that while self-defense was the central component of the right to keep and bear arms, the right was codified in the Second Amendment and included in the Bill of Rights to ensure the people’s ability to confront their own government with deadly force if the constitutional order broke down. Id. at 599; see also id. at 617-18 (the Second Amendment was meant to hold the government in check by securing to the people the ability to oppose themselves in military force against the usurpations of government), quoting Cooley, Treatise on Constitutional Limitations at 271 (1868), and Pomeroy, An Introduction to the Constitutional Law of the United States at 152-53 (1868).
The Court thus made clear in Heller that the Second Amendment was included in the Constitution specifically and mainly to guarantee the people’s ability, in times of constitutional crisis, to confront their own government with effective, deadly force.Properly understood and articulated as it was in Heller, the precise reason for the Second Amendment’s adoption is among the most politically taboo subjects in our nation’s political debates. Blind to every government’s inherent thirst for expansion of its power and authority, and oblivious to centuries of history in which governments have first disarmed, and then brutally oppressed, and even exterminated political adversaries and minorities, many Americans simply cannot envision a situation in which the American people would need to take up arms against their own government. It is the elephant in the room that almost no one on either end of the political spectrum talks about, ever.
Many Americans have forgotten (or were never taught by our failed educational system) that the widespread individual ownership of effective firearms, and the protection afforded by the Second Amendment, are precisely what has enabled them to live in a fragile bubble of freedom. The widespread failure (or deliberate refusal) of litigants, judges, politicians, and even active members of the gun community to discuss the importance of an effectively-armed citizenry as a check on government usurpations has created a legal/constitutional void in the minds of anti-gun legislators. Enabled by society’s politically correct silence and encouraged by the public outrage over mass shootings, nine state legislatures, the District of Columbia, and a growing number of local jurisdictions have enacted some form of assault weapons and/or LCM ban. Worse still, indifferent to the Constitution, oblivious to the main reason for adoption of the Second Amendment, and ignoring the majority’s pronouncements in Heller, anti-gun majorities in six federal circuit courts of appeal have ducked the fundamental political ramifications of assault weapon and LCM bans and allowed them to stand. As discussed below, these bans not only hinder self-defense inside and outside the home, but effectively undermine individual citizens’ ability to resist government tyranny everywhere they have been adopted. For the latter reason, above all others, these incursions on the Second Amendment right to keep and bear arms are unquestionably and horrendously unconstitutional.
Liberals, progressives, and anti-gunners know that they cannot muster the supermajority vote required by the Constitution to lawfully modify or eliminate the Second Amendment. Instead, they have deliberately and disingenuously adopted an incremental approach to reach their ultimate objective of effectively disarming the American people. Their efforts to enact so-called “reasonable” or “common-sense” gun control statutes on a state-by-state, or locale-by-locale basis, in constitutionally-ignorant, politically-willing legislatures, are meeting with success. And a federal judiciary heavily populated by anti-gun judges is enabling the spread of a piecemeal, but ever-expanding ban on commonly-owned, lawfully-used, semi-automatic firearms and LCMs.
To date, pro-Second Amendment legal minds have tried to defend the right to keep and bear arms based on politically correct arguments about the right of self-defense, while assiduously avoiding discussion of the main reason for adoption of the Second Amendment – to serve as a check against exactly the kind of incremental, gun-grabbing legislative program being orchestrated by progressive legislators and constitutionally-ignorant judges. If the current trend in our circuit courts of appeal is any indication, the politically-correct approach is falling on deaf ears, and the foundation for an authoritarian state – i.e., an effectively disarmed and constitutionally-supine generation of Americans – will be created by legislative and judicial fiat and progressives’ relentless anti-gun messaging.
Precisely because no one wants to address the people’s need and right to be able to effectively confront their government with deadly force in the event the constitutional order breaks down, the National Firearms Law Institute will take that issue on right here and now, regardless of how disturbing it will be to liberal, progressive, and anti-gun political sensibilities.
Setting the Stage for an Authoritarian State – Anti-Gun Appellate Judges Are Upholding Incremental Bans on Individual Ownership of Firearms Vital to Defending Our Basic Constitutional Freedoms
Kolbe v. Hogan
The Fourth Circuit’s 2017 decision in Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc), illustrates the way in which many of our federal circuit courts of appeal are trampling on the Second Amendment. In that case, the Fourth Circuit upheld Maryland’s statutory ban on the sale or possession of commonly-owned semi-automatic rifles (such as the AR-15) not ordered or owned prior to October 1, 2013, and the manufacture, sale, or purchase (but not the possession) of large capacity magazines. 849 F.3d at 121-23, 130-40. The Fourth Circuit’s decision in Kolbe runs afoul of the Supreme Court’s pronouncement in Heller that the Second Amendment protects the private ownership of small arms which are in common use by the citizenry for lawful purposes. Today, this includes commonly-owned and used firearms such as semi-automatic rifles and pistols, and accompanying high-capacity, detachable magazines, which together are relentlessly vilified by progressive politicians, the media, and anti-gunners as “assault weapons.”
Some progressives and anti-gunners intent upon gutting the Second Amendment have argued that the category of weapons protected by the Second Amendment should be limited to flintlock rifles and pistols in common use by citizens during the 18th century. In Heller, the Court described that argument as “bordering on the frivolous,” and pointed out that the Court interprets the Bill of Rights to encompass modernized versions of things that existed in the 18th century. 554 U.S. at 582. The Heller Court unhesitatingly stated that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Id. Based on its precedents, the Court further stated that the amendment protects arms in common use by law-abiding citizens for lawful purposes like self-defense. Id. at 624-25. This would unquestionably encompass and protect individual ownership of AR-15 rifles, the most popular rifle in the United States today, commonly-owned and used by law abiding citizens for the defense of homes and businesses. It would also encompass and protect individual ownership of high-capacity semi-automatic handguns, and the LCMs commonly used in those rifles and handguns.
The Fourth Circuit erroneously concluded in Kolbe that the core right protected by the Second Amendment does not encompass the assault weapons and LCMs banned by Maryland, 849 F.3d at 130-38, based on a mistaken analysis equating the banned assault weapons with weapons that are most useful in military service (such as fully-automatic M-16 rifles), id. at 125-28, 135-38, and a fundamental misunderstanding of the majority opinion in Heller, id. at 131, 141-43.
The court’s basic premise, that the banned assault weapons are even more lethal than the fully-automatic M-16 rifle, and are most useful in military service, is absurd on its face. An intellectually-honest analysis would inevitably and logically ask the following question – as four dissenting judges did in Kolbe: If the AR-15 is even more lethal than the M-16, why doesn’t our military routinely carry AR-15s into combat? Confronted with precisely that question by the dissenters’ opinion, id. at 158-59, the Kolbe majority essentially ducked the issue, and reiterated its result-oriented finding that because the AR-15 looks like an M-16, the AR-15 and other similar semi-automatics must be “most useful” as military weapons. Id. at 143-44.
The Kolbe court also badly misread Heller’s discussion of which types of firearms are and are not protected by the Second Amendment. Heller explains that the firearms intended to be protected by the Second Amendment were “those in common use at the time.” 554 U.S. at 624, quoting United States v. Miller, 307 U.S. 174, 179 (1939) (which excluded from Second Amendment protection short-barreled shotguns). Heller explained that “[i]n 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[,]” which of course refers to the single-shot, flintlock rifles and pistols commonly owned and used by individual citizens, the militia, and the 18th century military. 554 U.S. at 624-25, quoting State v. Kessler, 289 Ore. 359, 368, 614 P.2d 94, 98 (1980).
In addition, Heller explained that rights protected by the Constitution are construed by the Court to encompass technologically-improved versions of the colonists’ firearms: “Just as the First Amendment protects modern forms of communications, . . . and the Fourth Amendment applies to modern forms of search, . . . the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Heller, 554 U.S.at 582 (citations omitted). The Court thereby indicated that modern single-shot rifles and pistols (even those with engineering advancements that improve their rate of fire, like the AR-15) are protected by the amendment, so long as they are possessed and in common use by law-abiding citizens for lawful purposes like self-defense. Id. at 624-25. As the Court cogently observed in Heller, “that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface.” Id. at 625.
Heller also indicates that dangerous and unusual weapons not typically possessed by law-abiding citizens for lawful purposes are not protected by the Second Amendment, Id. at 625, 627, referring to short-barreled shotguns as an example, id. at 625, and to the M-16, a fully-automatic rifle, as a possible example, id. at 627.
When Heller is read in conjunction with the Supreme Court’s 1994 decision in Staples v. United States, 511 U.S. 600 (1994), these two decisions make clear that semi-automatic firearms (such as the AR-15 rifle at issue in Staples and the LCMs commonly used with them) are protected by the Second Amendment. In Staples, the Court found that the semi-automatic rifle at issue (an AR-15), notwithstanding its destructive potential, was widely accepted as a lawful possession. 511 U.S. at 611-12. The same was true then, and still is today, with respect to LCMs. The Court’s finding in Staples, together with its statement in Heller that small arms in common use for lawful purposes are protected by the Second Amendment, lead inexorably to a single conclusion – that single-shot, semi-automatic rifles (such as the AR-15), semi-automatic handguns and shotguns, and LCMs cannot be banned, because they are small arms in common use for lawful self-defense, hunting, and sport/target shooting.
At least on the surface, it appears that the Kolbe majority failed to strike Maryland’s assault weapons ban based on the semi-automatic AR-15’s external resemblance to its fully automatic cousin, the M-16, and the majority’s visceral fear of the AR-15’s lethality. But even if the Kolbe majority were correct that the AR-15 is a “dangerous weapon” as that terminology is used in Heller, it would not support its decision upholding the Maryland assault weapon ban. This is made clear by the four dissenting judges in Kolbe, who readily understood and correctly applied Heller’s analysis to Maryland’s ban. As the dissenters explained in Kolbe:
[T]he Second Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.” . . . By contrast, “the carrying of ‘dangerous and unusual weapons’” has been prohibited as a matter of “historical tradition.” … If a weapon is one “typically possessed by law-abiding citizens for lawful purposes,” . . . then it cannot also be a “dangerous and unusual” weapon in a constitutional sense, [Heller, 554 U.S.] at 627 (weapons “in common use at the time” did not include “dangerous and unusual weapons). . . .Indeed, Heller refers to “dangerous and unusual” conjunctively, so that even a “dangerous” weapon enjoys constitutional protection if it is widely held for lawful purposes. See [Caetano v. Massachusetts, 136 S. Ct.1027, 1031 (2016) (per curiam)] (explaining that the dangerous and unusual test “is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual”) (Alito, J., concurring).
The significance of this rule is that “the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.”. . . Simply put, if the firearm in question is commonly possessed for lawful purposes, it falls within the protection of the Second Amendment. . . .
Kolbe, 849 F.3d at 152-53 (Traxler, dissenting) (some citations omitted).
Thus, as shown above, the Fourth Circuit’s decision in Kolbe is completely undermined by three errors: (i) the majority’s failure to take account of the Supreme Court’s finding in Staples; (ii) the majority’s finding that the AR-15 is most useful for military purposes; and (iii) its misreading of Heller with regard to which firearms are (and are not) protected by the Second Amendment.
It bears particular note that, using the Kolbe majority’s reasoning, one would have to conclude that the Second Amendment does not even encompass the single-shot, flintlock rifles and pistols commonly owned and used by 18th century Americans. This is so because, when the amendment was passed, those very same weapons were the most lethal small arms available, and thus were most useful in military service. By the Kolbe majority’s reasoning, the newly-formed federal government could have equipped its army with flintlock rifles and pistols (the most lethal, and in fact, the only firearms available at the time), but the citizenry would have been limited to bows and arrows, knives, swords, spears, and slingshots and rocks. It is difficult to imagine a more ignorant, twisted reading of the Second Amendment and its intended purpose. To borrow from Justice Scalia’s opinion for the Court in Heller, grotesque.
Heller’s discussion of the main reason for passage of the Second Amendment makes clear that semi-automatic firearms in common use by the people are protected against government bans because, like the single-shot, flintlock rifles and pistols of colonial times, they are needed by the citizenry to protect our fundamental, constitutional freedoms against (among other threats) an overreaching, tyrannical government. 554 U.S. at 598-99, 617-18. Thus, even taking the Kolbe majority’s description of the AR-15’s capabilities as accurate, the Kolbe majority also completely ignores the people’s need for such arms to effectively resist government tyranny if the constitutional order breaks down. The Fourth Circuit thereby blithely disregarded the Maryland statute’s heavy burden on the main reason for adoption of the Second Amendment. Id. at 126-28, 135-39, 141-45. This error, like the others in Kolbe, is indisputably fatal to the Fourth Circuit’s constitutional analysis.
The Procedural Truth Reflexively Shunned by Progressives and Anti-Gunners: The Constitution Can Be Amended, But Only by a Supermajority
It bears note that the Kolbe court’s approach would largely accomplish (by legislative and judicial fiat) one of progressives’ and anti-gunners’ favorite political agenda items – to make it considerably more difficult, if not impossible, for armed citizens to effectively confront a standing army fully-equipped with an exceedingly deadly array of highly sophisticated weapons, the least of which include M-16 rifles, high capacity semi-automatic handguns, and LCMs. As discussed above, the methodology being used to achieve that objective directly contravenes the framers’ intent, as well as the express terms of the Constitution.
The framers created a procedure for modifying the Constitution, which is set forth in Article V. Using this procedure, the protections afforded by the Bill of Rights (including the right to keep and bear arms protected by the Second Amendment) can be amended, but only if the change is accepted by a super-majority vote of 75%. U.S. Const., Art. V. This is of course very difficult to accomplish (and purposely so) to inhibit ill-conceived, repressive changes in our fundamental governing document that arise from the political passions of the moment. Progressives, liberals, and anti-gunners never openly and honestly pursue modification of the constitutionally-protected right to keep and bear arms, because they know they cannot muster the broad-based support required to legitimately modify the Second Amendment. Instead, they exploit simple majorities in Congress and state legislatures who can be convinced in the heat of the moment to pass expedient, piecemeal legislation, such as LCM and assault weapons bans, in a relentless effort to disarm the American people. The framers never intended that the Second Amendment die the death of a thousand cuts at the hands of an inflamed, simple majority, or a constitutionally-indifferent, firearms-ignorant judiciary. The country’s failure to hew to Article V’s super-majority requirement is unwittingly enabling the intellectually-dishonest “progressive” politics of our time.
Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General New Jersey
The judiciary’s complicity in the piecemeal legislative attack on individual ownership of semi-automatic firearms and LCMs has continued after Kolbe. The Third Circuit Court of Appeals recently upheld the constitutionality of an LCM ban passed by the State of New Jersey, which makes it illegal to possess a magazine capable of holding more than 10 rounds of ammunition. N.J. Stat. Ann 2C:39-1(i), 2C:39-3(j) (2018). In Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General New Jersey, Appeal No. 18-3170 (3d Cir. December 5, 2018) (Slip Op.) (hereinafter “ANJRPC”), a three-judge panel of the Third Circuit court of appeals held that New Jersey’s ban on LCMs does not violate the Second Amendment. ANJRPC, Slip Op. at 33.
The Third Circuit held that LCMs are “arms” within the meaning of the Second Amendment, and then proceeded to analyze whether the state’s ban imposed a burden on conduct protected by the Second Amendment, and whether the ban satisfied an applicable “means-end” test for constitutionality. Slip Op. at 19-20.
Based on the record, the court found that millions of LCMs are owned, and the court assumed for purposes of its analysis that they are typically possessed by law-abiding citizens for lawful purposes (including self-defense). Id. at 20-21. The court therefore assumed (without making a formal finding) that LCMs are entitled to protection under the Second Amendment. Id. at 21-22.
The court then proceeded to determine which “means-end” standard should be applied to the ban, explaining that if the ban burdened a core Second Amendment right, strict scrutiny would apply, and if not, intermediate scrutiny would apply. Id. at 22. In Heller, the Supreme Court held that self-defense in the home (the issue directly at stake in that case) was a core right protected by the Second Amendment. 554 U.S. at 594, 628-29, 635-36. But the Supreme Court did not stop there, and further explained (quite clearly) that the Second Amendment also encompassed self-defense outside the home, and was adopted specifically to protect the people’s ability to effectively resist government tyranny. Id. at 584, 594 (self-defense outside the home), 597-99, 617-18 (resistance to government tyranny). The Third Circuit badly misread Heller and misconstrued the core right protected by Second Amendment as being narrowly limited to self-defense in the home. ANJRPC, Slip Op. at 22.
Based on its disingenuously narrow reading of Heller, the Third Circuit panel then concluded that New Jersey’s LCM ban did not severely burden the core Second Amendment right to self-defense in the home, for five reasons:
- The ban did not categorically ban an entire class of arms, only magazines capable of holding more than 10 rounds.
- In the Third Circuit’s view, LCMs are not well-suited for self-defense.
- The ban does not effectively disarm individuals or substantially affect their ability to defend themselves.
- The ban does not render magazines incapable of operating as intended, it only limits the number of rounds they may hold.
- Not even the right of self-defense in the home is absolute or protected from all regulation.
ANJRPC, Slip Op. at 23-25.
Ironically, the Third Circuit concluded that the ban not only does not severely burden, but in fact respects, the Third Circuit’s narrowly-construed core Second Amendment right, id. at 25, a patently absurd conclusion to anyone who is at all familiar with popular semi-automatic, high capacity handguns often used for self-defense in the home. If a homeowner and a home invader are each armed with a semi-automatic handgun that accommodates an LCM, but the homeowner abides by the LCM ban, the homeowner will have to re-load after the ten rounds in her LCM are expended, while the home invader still has at least five more rounds available to finish the homeowner off before having to change magazines. Were it not for the panel majority’s shameful ignorance of these readily discernible, simple facts, it would be beyond comprehension how the court could conclude that the right to self-defense in the home is not substantially burdened by New Jersey’s LCM ban.
Oblivious to the real-world effects of New Jersey’s LCM ban on even the Third Circuit’s narrowly-drawn core right of self-defense in the home, the court applied the intermediate scrutiny standard typically applied by courts when they are going to uphold a constitutionally-dubious law. Id. at 25. The Third Circuit readily found that there is a reasonable fit between New Jersey’s interest in protecting its citizens’ safety (including reducing the lethality of active shooter and mass shooter incidents) and the state’s ban on LCMs, and therefore concluded that New Jersey’s LCM ban satisfied the intermediate scrutiny standard. Id. at 27-31.
The Third Circuit’s selection of intermediate scrutiny is also fatally undermined by the court’s failure to recognize that (i) the core right protected by the Second Amendment extends outside the home to self-defense in public, and (ii) the LCM ban inherently disadvantages responsibly armed citizens who abide by it and are caught up in active shooter or mass shooter situations outside the home. Id. at 27-33. Nowhere does the court even consider the significant disadvantage the LCM ban imposes on a lawfully-armed citizen (e.g., carrying a semi-automatic handgun with a magazine limited to 10 rounds) who faces one or more active shooters each using a semi-automatic handgun (or rifle) with an LCM holding anywhere from 15 to 30 rounds. Anti-gun judges like the majority on the ANJRPC panel consistently fail to evaluate gun control legislation such as LCM bans in a practical and realistic manner because they typically lack the firearms knowledge and understanding needed to conduct an objective, real-world analysis, and they at least appear to be predisposed by their anti-gun prejudices to remain ignorant.
In addition, and most importantly, the Third Circuit’s selection of intermediate scrutiny is hopelessly undercut by the court’s failure to recognize that the main purpose of the Second Amendment is to protect the people’s ability, if necessary, to effectively confront the government’s standing army with deadly force. In the unhappy event that the people need to take up arms against government tyranny, New Jersey’s prohibition on LCMs would limit even those citizens who possess grandfathered semi-automatic firearms to the use of 10 round magazines. In doing so, the ban seriously disadvantages citizens carrying semi-automatic handguns and rifles, who would be facing the military’s fully-automatic M-16s fed by LCMs. Particularly when combined with New Jersey’s assault weapons ban, which precludes law-abiding citizens from possessing an array of semi-automatic rifles and shotguns, it is difficult to imagine a more unconstitutional burden on the right protected by the Second Amendment.
To those who would argue that the availability of magazines that hold no more than 10 rounds is sufficient to excuse LCM bans, the response is threefold, and simple: (1) because the government is armed with fully automatic firearms and LCMs, a ban on LCMs in civilian hands, practically speaking, disables the people from effectively confronting government tyranny with deadly force, and thereby violates the Second Amendment’s main purpose; (2) limited capacity magazines do not enable citizens to defend themselves effectively against criminals and mass shooters, who will routinely use LCMs even in the face of LCM bans; and (3) in Heller, the Court held that a ban on one kind of weapon in common use – which is therefore protected by the Second Amendment – cannot be excused by the continued availability of other weapons in common use: “It is no answer to say . . . that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.” 554 U.S.at 629.
The Circuit Courts’ Legal Analysis May Face Rough Sledding at the Supreme Court
With its decision in ANJRPC, the Third Circuit joined five other circuit courts which have held that laws restricting magazine capacity to ten rounds do not violate the Second Amendment. See Heller II, 670 F.3d at 1260-64; Fyock, 779 F.3d at 998-1001; Friedman, 784 F.3d at 410-12; NYSRPA, 804 F.3d at 249, 263-64; Kolbe, 849 F.3d at 130-40. Five of those six decisions (all but Friedman) applied the intermediate scrutiny means-end analysis to uphold assault weapon and LCM bans.
When Supreme Court Justice Kavanaugh was a judge on the D.C. Circuit, he dissented from the majority decision in Heller II, and explained that the correct legal test to apply to gun bans and regulations is not the means-end analyses being applied in the circuit courts, but rather, analysis based on the Second Amendment’s text, history, and tradition:
In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as struct scrutiny or intermediate scrutiny. To be sure, the Court never said something as succinct as “Courts should not apply strict or intermediate scrutiny but should instead look to text, history, and tradition to define the scope of the right and assess gun bans and regulations.” But that is the clear message I take away from the Court’s holdings and reasoning in those two cases.
As to bans on categories of guns, the Heller Court stated that the government may ban classes of guns that have been banned in our “historical tradition” – namely, guns that are “dangerous and unusual” and thus are not “the sorts of lawful weapons that” citizens typically “possess at home.”
Heller II, 670 F.3d at 1271-72 (Kavanaugh, dissenting), quoting Heller, 554 U.S. at 627, and referring to McDonald v. City of Chicago, 561 U.S. 742 (2010).
Judge Kavanaugh acknowledged the Heller Court’s comment that D.C.’s handgun ban would fail under any means-end test the Court has applied. Id. at 1277. He then explained why it was not a statement that courts should apply means-end analyses in Second Amendment cases:
To be sure, the Court noted in passing that D.C.’s handgun ban would fail under any level of heightened scrutiny or review the Court applied. . . . But that was more of a gilding-the-lily observation about the extreme nature of D.C.’s law – and appears to have been a pointed comment that the dissenters should have found D.C.’s law unconstitutional even under their own suggested balancing approach – than a statement that courts may or should apply strict or intermediate scrutiny in Second Amendment cases. We know as much because the Court expressly dismissed Justice Breyer’s Turner Broadcasting intermediate scrutiny approach and went on to demonstrate how courts should consider Second Amendment bans and regulations – by analysis of text, history, and tradition. . . .
Id. at 1277-78 (Kavanaugh, dissenting) (citations to Heller omitted).
Justice Kavanaugh applies a more intellectually honest approach to these issues than the anti-gun judges still sitting on the circuit courts of appeal, who have displayed an outrageous penchant for misconstruing or ignoring controlling Supreme Court precedent they don’t like. As then-Judge Kavanaugh cogently pointed out in his Heller II dissent, “[a] lower court judge has a special obligation . . . to strictly and faithfully follow the lead of the ‘one supreme Court’ established by our Constitution, regardless of whether the judge agrees or disagrees with the precedent.” Id. at 1296 (Kavanaugh, dissenting). Now that he is on the Supreme Court, it will be interesting to watch him work on assault weapon and LCM ban issues, and to see whether he embraces as part of his reasoning the framers’ main purpose for adopting the Second Amendment.
What The Future Holds
It is a commonly-accepted historical fact that authoritarian governments and dictators routinely seek to confiscate individually-owned small arms as an essential step in gaining and/or maintaining absolute control over the population. The list is long and distinguished – Hitler in Germany, Stalin in Russia, Mao in China, Pol Pot in Cambodia, Castro in Cuba, Chavez in Venezuela, King Charles II and King James II in England, and of course, King George – and we could go on from there. To the naïfs among us who refuse to accept or understand that it could happen here, be forewarned, the process has already begun. No matter how cleverly progressive politicians and anti-gunners try to spin their position on gun control, it is a fundamental truth that an effectively-armed population is a free population. Today’s progressive, gun-grabbing politicians know this to be true, and they can’t abide the constraint it imposes on their power over the American people. Their relentless effort to incrementally disarm their fellow citizens is a thinly-disguised precursor to imposition of their radical political agenda on a constitutionally- and historically-ignorant generation of Americans.
While we are on a bad path, constitutionally-speaking, there is still hope for the Second Amendment. Confronted with ever-expanding incursions on the right to keep and bear arms, the American people might choose the path of civil disobedience. In that regard, it was recently reported by the National Rifle Association that the citizens of New Jersey have essentially ignored New Jersey’s December 10, 2018 deadline for compliance with the state’s LCM ban, and as of February 2019, have not relinquished their LCMs. How Is Canada Like New Jersey?, America’s First Freedom at 52 (March 2019).Apparently, the Spirit of ’76 is alive and well among firearm owners in the Garden State.
Patriotic New Jersey firearm owners are not alone. On March 4, 2019, Reuters reported that in at least four states (Washington, Oregon, New Mexico, and Illinois), law enforcement officials in a rapidly-growing number of counties are declaring their jurisdictions to be Second Amendment sanctuaries and are refusing to enforce gun control laws they believe are unconstitutional. Backers of this movement are talking with like-minded activists in California, New York, Iowa, and Idaho.
In addition, the Supreme Court appears to be poised to take up the unconstitutionality of assault weapon and LCM bans when an appropriate case presents itself, as well the Court should. In Friedman v. City of Highland Park, 136 S. Ct. 447 (2015), Justice Thomas dissented from the denial of certiorari in a case upholding the City of Highland Park’s ban on assault weapons and LCMs. 136 S. Ct. at 449 (Thomas, J., dissenting from a denial of certiorari). Justice Thomas observed:
The City’s ban is thus highly suspect because it broadly prohibits common semiautomatic firearms used for lawful purposes. Roughly five million Americans own AR-style semiautomatic rifles. . . . The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting. . . . Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.
136 S. Ct. at 449 (Thomas, J., dissenting) (citations omitted).
In addition, in then-Judge Kavanaugh’s dissent in Heller II, he explained in great depth why the District of Columbia’s assault weapon and LCM bans violate the Second Amendment and should have been declared unconstitutional.(See discussion supra.) There can be little question that Justices Thomas and Kavanaugh have serious doubt about the validity of circuit court rulings upholding bans on semi-automatic firearms and LCMs.
It also appears that at least two more Justices – Alito and Gorsuch – would vote to hear the next assault weapons and/or LCM ban presented to the Court. Only four votes are needed to grant certiorari. The only issue that might hinder a grant of certiorari is uncertainty as to Chief Justice Roberts’ views on the unconstitutionality of those bans.
The country is more fractured than it has ever been with respect to the scope of the Second Amendment and the fundamental civil right to keep and bear arms. Because the Second Amendment, in everyday practical terms, is the provision that effectively protects the rest of the Bill of Rights, the Supreme Court will hold all of the American people’s fundamental rights in its hands when it takes up a case involving an assault weapon or LCM ban. The pro-Second Amendment majority on the Court is still a thin one, and if you think last year’s all-out brawl over Justice Kavanaugh’s appointment to the Court was beyond the pale, the next confirmation proceeding is likely to be even uglier, as anti-gunners and progressives employ any and all means available to them to resist the President’s appointment of another originalist justice. In that appointment and confirmation lies the country’s best hope for re-vitalizing the Second Amendment and thereby protecting, at least for the time being, the people’s fundamental civil rights, and the country’s fragile constitutional order.
Copyright 2019 Stephen L. Sulzer
The numbers vary widely, depending on whose definition of a mass shooting you apply. According to the Gun Violence Archive, there were more than 300 mass shootings in the United States in 2018, with a mass shooting defined as an incident in which four or more persons are killed or injured with firearms, within a single event, in one or more locations in close proximity. Gun Violence Archive, Mass Shootings in 2018, www.gunviolencearchive.org/reports/mass-shooting?year=2018. A mass shooting has been defined more narrowly by the FBI as a multiple homicide incident in which four or more victims are murdered with firearms, within a single event, in one or more public locations in close proximity. William J. Krouse and Daniel J. Richardson, Mass Murder With Firearms: Incidents and Victims, 1999-2013, Congressional Research Service (July 30, 2015). Defined in this narrower way, but using the Gun Violence Archive’s data, there were 26 mass shootings in this country in 2018. See Gun Violence Archive, Mass Shootings in 2018, www.gunviolencearchive.org/reports/mass-shooting?year=2018.
E.g., the Marjory Stoneman Douglas High School shooting in Parkland, Florida (17 killed and 17 injured), the Pulse nightclub shooting in Orlando, Florida (49 killed and 53 injured)), the Sandy Hook Elementary School shooting in Newtown, Connecticut (28 killed and 2 injured), and the Mandalay Bay Resort and Casino shooting in Las Vegas, Nevada (58 killed and more than 500 injured).
California (Cal. Penal Code §§ 30515, 30600, 30945, 31000 (prohibiting the possession (unless grandfathered and registered), manufacture, or sale of various semi-automatic rifles, shotguns, and handguns)); Connecticut (Conn. Gen. Stat. §§ 53-202a(1)(A-(D), 53-202a(1)(E)(i), 53-202a(1)(E)(iv), 53-202a(1)(E)(vi), 53-202c(a), (c), 53-302d(a)(2)(A) (prohibiting possession of various semi-automatic rifles, shotguns, and handguns, unless grandfathered and registered, or their sale)); Hawaii (Haw. Rev. Stat. § 134-1, 134-8(a) (criminalizing the manufacture, possession, or sale of various semi-automatic handguns)); Maryland (Md. Code Ann., Crim. Law §§ 4-301(c); 4-301(d), 4-301(e)(1), 4-303(a), 4-303(b)(1), 5-101(r)(2) (prohibiting the possession or sale of various semi-automatic rifles, shotguns, and handguns, unless grandfathered and registered)); Massachusetts (Mass. Gen. Laws ch. 140, §§ 121, 123 (Sixteenth), 131M (prohibiting the possession or sale of various semi-automatic rifles, shotguns, and handguns, unless grandfathered)); New Jersey (N.J. Stat. Ann. §§ 2C:39-1w, 2C:39-5f (prohibiting the knowing possession of various semi-automatic rifles and shotguns, unless grandfathered and registered)); New York (N.Y. Penal Law §§ 265.00(22)(f)-(h), 265.02(7), 265.10(prohibiting manufacturing, disposing of, or possessing various semi-automatic rifles, shotguns, or handguns, unless grandfathered and registered)); Washington (Washington Proposition 1639 (effective July 1, 2019, Rev. Code Wash. (ARCW) §§ 9.41.240(1), 9.41.240 (3), 941.090(2), 941.092 (imposing sale and possession restrictions on semi-automatic rifles)); District of Columbia (D.C. Code Ann. §§ 7-2501(3A)(A), 7-2502.02(a)(6), 7-2505.01, 7-2505.02(a), 7-2501.01(3A) (prohibiting possession or sale of various semi-automatic rifles, shotguns, and handguns)); Deerfield, Illinois (Ordinance No. 0-18-06, §§ 1, 2 (prohibiting the manufacture, sale, or possession of various semi-automatic rifles, shotguns, and handguns)); Highland Park, Illinois (Highland Park City Code §§ 136.001(C), 136.005 (prohibiting possession of various semi-automatic rifles, shotguns, and handguns)).
At least six local jurisdictions already had assault weapons bans in place: Aurora, Illinois (Aurora, Ill. Code of Ordinances § 29-49(a) (prohibiting assault weapons, including the AR-15)); Boston, Massachusetts (City of Boston Acts of 1989, Ch. 596 §§ 1, 2 (prohibiting assault weapons including semi-automatic rifles)); Buffalo, New York (City Code of Buffalo, N.Y. § 180-1(B), (F) (prohibiting assault weapons)); Denver, Colorado (Denver Rev. Mun. Code § 38-130 (same)); New York, New York (New York City Administrative Code §§ 10-301(16), 10-303.1 (same)); Rochester, New York (City of Rochester Code § 47-5(B), (F) (same)).
California (Cal. Penal Code § 16740 (10 rounds)); Colorado (Colo. Rev. Stat. § 18-12-301(2)(a)(I) (15 rounds)); Connecticut (Conn. Gen. Stat. § 53-202w (10 rounds)); Hawaii (Haw. Rev. Stat. §134-8(c) (10 rounds)); Maryland (Md. Code Ann., Crim. Law § 4-305(b) (10 rounds)); Massachusetts (Mass. Gen. Laws ch. 140 §§ 121, 131M (10 rounds)); New Jersey (N.J. Stat. Ann. 2C:39-1(y), 2C:39-3(j) (10 rounds); New York (N.Y. Penal Law § 265.00(23)(a) (10 rounds)); Vermont (13 Vt. Stat. Ann. 4021(e)(1)(A), (B) (10 rounds for a “long gun” and 15 rounds for a “hand gun”)); District of Columbia (D.C. Code § 7-2506.01(b) (10 rounds)); Deerfield, Illinois (Ordinance No. 0-18-06, §§ 1, 2 (prohibiting the manufacture, sale, or possession of LCMs, i.e., magazines capable of holding more than 10 rounds)); Highland Park, Illinois (Highland Park City Code §§ 136.001(G), 136.005 (same)); Sunnyvale, California (Sunnyvale, Cal. Muni. Code §9.44.060(a) (prohibiting possession of LCMs, i.e., magazines capable of holding more than 10 rounds)).
At least six local jurisdictions already had LCM bans in place: Aurora, Illinois (Aurora, Ill. Code of Ordinances § 29-49(a) (prohibiting LCMs)); Boston, Massachusetts (City of Boston Acts of 1989, Ch. 596 §§ 1, 2 (same)); Buffalo, New York (City Code of Buffalo, N.Y. § 180-1(B), (F) (same)); Denver, Colorado (Denver Rev. Mun. Code § 38-130 (same)); New York, New York (New York City Administrative Code §§ 10-301, 10-306 (same)); Rochester, New York (City of Rochester Code §47-5(B), (F) (same)).
See Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General New Jersey, Appeal No. 18-3170, Slip Opinion at 33 (3d Cir. December 5, 2018) (upholding New Jersey’s ban on LCMs); Fyock v. City of Sunnyvale, 779 F.3d 991, 998-1001 (9th Cir. 2015) (upholding a district court’s ruling declining to enjoin Sunnyvale, California’s ban on LCMs); Kolbe v. Hogan, 849 F.3d 114, 121-23, 130-40 (4th Cir. 2017) (en banc) (upholding Maryland’s ban on assault weapons and LCMs); New York State Rifle & Pistol Association v. Cuomo, 804 F.3d 242, 249, 263-64 (2d Cir. 2015) (upholding New York’s ban on large capacity magazines capable of holding more than 10 rounds); Friedman v. City of Highland Park, 784 F.3d 406, 407-12 (7th Cir. 2015) (openly criticizing, and declining to follow, the Supreme Court’s “in common use for lawful purposes” standard, and upholding Highland Park, Illinois’ ban on assault weapons and LCMs); Heller v. District of Columbia, 670 F.3d 1244, 1247-48, 1249, 1262-64 (D.C. Cir. 2011) (Heller II) (upholding the District of Columbia’s ban on assault weapons and LCMs).
The United States District Court for the District of Massachusetts also rejected a Second Amendment challenge to Massachusetts’ LCM ban. Worman v. Healey, 293 F. Supp. 3d 251, 264-66 (D. Mass. 2018), appeal docketed sub nom. Worman v. Baker, Appeal No. 18-1545 (1st Cir. June 19, 2018).
The answer is simple. As the Supreme Court observed in Staples v. United States, 511 U.S. 600, 603 (1994), the M-16 provides our troops with both semi-automatic and fully-automatic settings. Even if, as the Kolbe majority believes, semi-automatic fire is more lethal than fully-automatic fire, the M-16 provides both capabilities, while the AR-15 does not. It remains a mystery how the AR-15’s limited functionality as a single-shot, semi-automatic rifle makes it more useful as a military weapon than as a weapon for self-defense, or more importantly, than as an easy-to-use firearm that would enable an armed citizenry to at least have some capability to defend itself against its own government’s tyranny.
In 2007, in Parker v. District of Columbia, 478 F.3d 370, 398 (D.C. Cir. 2007), aff’d sub nom. District of Columbia v. Heller, 554 U.S. 570 (2008),the D.C. Circuit stated that modern rifles, shotguns, and handguns have traditionally been possessed by law-abiding citizens and are within the protection of the Second Amendment.
I.e., “to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without . . . .”Heller, 554 U.S. at 617-18; see also id. at 598-99.
The Court of Appeals for the District of Columbia Circuit made the same mistake in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (Heller II). In that case, the District of Columbia Circuit upheld the constitutionality of the District of Columbia’s ban on assault weapons and LCMs, adopted in the wake of the Supreme Court’s 2008 decision in Heller. Like the Fourth Circuit in Kolbe, the D.C. Circuit upheld the ban by ignoring the Supreme Court’s finding in the 2008 Heller decision that the main reason for adopting the Second Amendment was to protect the people’s ability to effectively confront the government with deadly force if the constitutional order broke down. See Heller II, 670 F.3d at 1260-64, improperly ignoring Heller, 554 U.S. at 597-99, 617-18.
Several other federal circuit courts of appeal have tried to support their decisions upholding assault weapon or LCM bans by narrowly focusing attention on Heller’s description of self-defense in the home as a “core right.” Fyock, 779 F.3d at 998-1001 (self-defense in the home); Friedman, 784 F.3d at 409-12 (same); NYSRPA, 804 F.3d at 253, 258, 260, 263 (self-defense generally); Association of New Jersey Rifle & Pistol Clubs, Inc. v. Attorney General New Jersey, Appeal No. 18-3170, Slip Opinion at 18-19, 22-23 (3d Cir. Dec. 5, 2018) (self-defense in the home). Like Kolbe and Heller II, these decisions wrongly ignore Heller’s finding that the main reason for adopting the Second Amendment was to protect the people’s ability to effectively oppose government usurpations with deadly force. All six of these circuit court decisions should be overruled when the Supreme Court takes up its first case addressing an assault weapons or LCM ban.
Under the New Jersey statute, a “[l]arge capacity ammunition magazine” is defined as “a box, drum, tube or other container which is capable of holding more than 10 rounds of ammunition to be fed continuously and directly therefrom into a semi-automatic firearm. The term shall not include an attached tubular device which is capable of holding only .22 caliber rimfire ammunition.” N.J. Stat. Ann 2C:39-1(y) (2018). Prior to the 2018 Act, New Jersey had prohibited LCMs capable of holding more than 15 rounds of ammunition. See id. (1990).
The statute provides exceptions for active law enforcement and active duty military who are authorized to possess and carry a handgun. N.J. Stat. Ann. 2C:39-3(g) (2018). Retired law enforcement are also exempt and may possess and carry semi-automatic handguns that hold up to fifteen rounds of ammunition. Id. at 2C:39-17.
The Act provides several ways for those who are not exempt from the law to comply. LCM owners were given until December 10, 2018 (180 days from its June 13, 2018 effective date) to (1) modify their LCMS to accept tens rounds or less, id. at 2C:39-19(b); (2) render firearms with LCMs or the LCM itself inoperable, id.; (3) register firearms with LCMs that cannot be modified to accommodate ten or less rounds, id. at 2C:39-20(a); (4) transfer the firearm or LCM to an individual or entity entitle to own or possess it, id. at 2C:39—19(a); or (5) surrender the firearm or LCM to law enforcement, id. at 2C:39-19(c).
In many areas of constitutional law, laws or regulations that impose upon or infringe constitutional rights are subject to one of three “means-end” legal tests that are more or less stringent depending on the right and the burden/restriction in question: (i) rational basis review requires that the challenged law bear a rational link to a legitimate public interest; (ii) intermediate scrutiny requires a substantial link to an important public interest; and (iii) strict scrutiny demands that a law be narrowly tailored to a compelling public interest. See generally Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 U.C.L.A. L. Rev. 1267 (2007). If the appropriate test is met, the law is considered to be constitutional; if not, the law will be struck.
In Heller, the Supreme Court held that rational basis review was inappropriate to determine the extent to which a legislature may regulate a specific, constitutionally-enumerated right, such as the right to keep and bear arms. 554 U.S. at 628 n. 27. Post-Heller, intermediate scrutiny has often been used by anti-gun judges to uphold laws restricting the right to keep and bear arms.
Anti-gun politicians and legislators (folks who are typically woefully unfamiliar with the tactical use of firearms) routinely denigrate the use of semi-automatic firearms and LCMs as tools of self-defense, both in the home and outside the home. Anti-gunners’ insistence that lawful gun owners accept anti-gunners’ ignorant views regarding the efficacy of semi-automatic firearms and LCMs directly contravenes the constitutional order and political balance of power protected by the Second Amendment. Judge Manion made this clear in his dissent in Friedman:
To be sure, assault rifles and large capacity magazines are dangerous. But their ability to project large amounts of force accurately is exactly why they are an attractive means of self-defense. While most persons do not require extraordinary means to defend their homes, the fact remains that some do. Ultimately, it is up to the lawful gun owner and not the government to decide these matters. To limit self-defense to only those methods acceptable to the government is to effect an enormous transfer of authority from the citizens of this country to the government – a result directly contrary to our constitution and to our political tradition. The rights contained in the Second Amendment are “fundamental” and “necessary to our system of ordered liberty.” McDonald, 561 U.S. at 778, 130 S. Ct. 3020. The government recognizes these rights, it does not confer them.
Friedman, 784 F.3d at 413 (Manion, dissenting).
In Friedman, the Seventh Circuit majority went completely rogue, criticizing the Supreme Court’s decision in Heller as “ambiguous” and its analysis as “circular,” and refusing to follow the Court’s guidance that the Second Amendment protects the private ownership of small arms which are in common use by the citizenry for lawful purposes. 784 F.3d at 409-10, 412.
Judge Kavanaugh cogently supported his view with the following observations:
In disapproving D.C.’s ban on handguns, in approving a ban on machines guns, and in approving longstanding regulations such as concealed-carry and felon-in-possession laws, Heller established that the scope of the Second Amendment right – and thus the constitutionality of gun bans and regulations – is determined by reference to text, history, and tradition. As to the ban on handguns, for example, the Supreme Court in Heller never asked whether the law was narrowly tailored to serve a compelling government interest (strict scrutiny) or substantially related to an important government interest (intermediate scrutiny). If the Supreme Court meant to adopt one of those tests, it could have said so in Heller and measured D.C.’s handgun ban against the relevant standard. But the Court did not do so; it instead determined that handguns had not traditionally been banned and were in common use – and thus that D.C.’s handgun ban was unconstitutional.
Moreover, in order for the Court to prospectively approve the constitutionality of several kinds of gun laws – such as machine gun bans, concealed-carry laws, and felon-in-possession laws – the Court obviously had to employ some test. Yet the Court made no mention of strict or intermediate scrutiny when approving such laws. Rather, the test the Court relied on – as it indicated by using terms such as “historical tradition” and “longstanding” and “historical justifications” – was one of text, history, and tradition.
Heller II, 670 F.3d at 1272-73 (Kavanaugh, dissenting), quoting Heller, 554 U.S. at 626-27, 635.
Judge Kavanaugh also pointed out the statement in Justice Alito’s plurality (controlling) opinion in McDonald rejecting the use of means-end or interest-balancing tests to determine the constitutionality of gun control laws: “‘The very enumeration of the right takes out of the hands of government – even the Third Branch of Government – the power to decide on a case-by-case basis whether the right is really worth insisting upon.’” Heller II, 670 F.3d at 1279 (Kavanaugh, dissenting), quoting McDonald, 561 U.S. at 790-91 (controlling opinion of Alito, J.), quoting Heller, 554 U.S. at 684.
Again, the list is long, and best distinguished by its members’ devious refusal to use Article V of the Constitution to properly change the rules. To name just a few of these constitutional malfeasants: Jeff Bezos, Joe Biden, Michael Bloomberg, Richard Blumenthal, Cory Booker, Hillary Clinton, Andrew Cuomo, Bill de Blasio, Rahm Emanuel, Dianne Feinstein, Tulsi Gabbard, Gabriella Giffords, Kirsten Gillibrand, Kamala Harris, John Hickenlooper, Jay Inslee, John Kasich, Amy Klobuchar, Terry McAuliffe, Ralph Northam, Alexandria Ocasio-Cortez, Beto O’Rourke, Nancy Pelosi, Bernie Sanders, Howard Schultz, Charles Schumer, George Soros, Thomas Steyer, and Elizabeth Warren. These anti-gun politicians and political financiers typically feign sensitivity to the people’s needs and desires but are the most dangerous players of all in the political process. They have proven their willingness to trample the constitutional rights of the minority based on a simple majority’s passions of the moment, whenever it suits their objective of shifting ultimate political control from the people to the government. That is exactly the type of thinking the framers sought to constrain with the Bill of Rights. Our widespread ignorance of our own history and of the limits that our Constitution (particularly the Second Amendment) imposes on political expediency will be our undoing, when an ineffectively armed population is subjected to the tyrannical control of its own radicalized government.
Justice Alito’s opinion in McDonald, which rejected the use of means-end or interest-balancing tests to determine the constitutionality of gun control laws, shows his support for the Second Amendment. See McDonald, 561 U.S. at 790-91 (controlling opinion of Alito, J.). Justice Alito shed additional light on his views with respect to weapons bans in Caetano v. Massachusetts, 136 S. Ct.1027 (2016) (per curiam). In Caetano, the Supreme Court vacated a Massachusetts Supreme Judicial Court decision upholding a ban on the possession of electrical stun guns. 136 S. Ct. at 1027-28. In a concurring opinion, Justice Alito criticized the Massachusetts Supreme Judicial Court for failing to apply Heller’s holding that the Second Amendment extends to all bearable arms, even those not in existence at the time of the founding, and only excludes arms that are both dangerous and unusual. Id. at 1030-32 (Alito, J., concurring).