Firearms Friday: Justice Scalia

A couple of weeks ago we lost a tremendous intellect on the Supreme Court when Antonin Scalia passed away. While there have been many who have criticized his views over the years, including in the firearms community, there is no questioning the passion that he had for the Constitution and for the true intent of the Founding Fathers who wrote it. In fact, there were times when he himself didn’t completely agree with his own decision but reached the conclusion that he did because it was the right decision. As he has been quoted as saying, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

Surprisingly, one of the more balanced ‘obituaries’ written shortly after his death can be attributed to Mark Sherman at the Associated Press who rightly focused on Scalia’s commitment to textualism. In part, he writes:

Scalia showed a deep commitment to originalism, which he later began calling textualism. Judges had a duty to give the same meaning to the Constitution and laws as they had when they were written. Otherwise, he said disparagingly, judges could decide that "the Constitution means exactly what I think it ought to mean."

A challenge to a Washington, D.C., gun ban gave Scalia the opportunity to display his devotion to textualism. In a 5-4 decision that split the court's conservatives and liberals, Scalia wrote that an examination of English and colonial history made it exceedingly clear that the Second Amendment protected Americans' right to have guns, at the very least in their homes and for self-defense. The dissenters, also claiming fidelity to history, said the amendment was meant to ensure that states could raise militias to confront a too-powerful federal government if necessary.

But Scalia rejected that view. "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct," Scalia wrote.

Unfortunately, his passing leaves a gaping hole in the highest court in the land. Not because he sided primarily with one party or another but because he was an originalist. There is too much ‘selective interpretation’ in politics and in the courts today and having someone relying solely on the text is a tremendous grounding asset that has been taken for granted for too long. Additionally, the passion that he freely expressed for our founding document is something that was evident in the eloquence of his majority opinions but especially in his dissenting opinions.

It is a shame that the two things that have been talked about most since his passing is the lack of respect by the President in not attending his funeral (but he took the time to meet with the ‘death to the police’ Black Lives Matter organizers) and the ongoing debate surrounding the nomination of a replacement. Here is a revolutionary idea, why don’t we honor his memory by nominating someone who views our Constitution in the same unbiased way making decisions based on the text rather than the social flavor of the month. No politics, just focusing on the text. I’m not even asking for nine, I just want to see one Justice on the Supreme Court who takes their oath literally.

Firearms Friday: A Tale Of Two States

The laws that have been proposed, speeches given, and legislation that has been passed over the past few years is troubling to say the least and unconstitutional at worst. While we have been able to fight and defeat many of these bogus promises of safety, there are a few that managed to get on the books and have been restricting the rights of second amendment practitioners ever since. One of the more egregious and confusing laws which was brought to my attention recently is one that comes from, don’t be shocked, California.

A number of years ago (effective January 1, 2001), legislators in the Fool’s Gold state enacted PC 12131 which established the “Safe Handgun Roster.” While sold to the public as a means to limit the sale of unsafe firearms in the communist bloc, the reality of the legislation is that it was a means to shake down the firearms industry by imposing unnecessary testing and exorbitant fees on an annual basis. No wonder why Leland Yee turned to the black market!

The definitions of those firearms that meet the criteria to get on this list was then expanded upon in 2007 as “legislators passed AB 1471 which mandated that all semi-automatic pistols must employ microstamping technology.” What this now means is previous generations of firearms are safely housed on this arbitrary list while new generations are considered un-safe. A perfect example of this is the cluster that one law enforcement finds themselves in as they attempt to transition to the 4th generation Glock 19 as their service weapon. According to the Attorney General, the office of which previously exempt law enforcement from selecting from the list, they are a generation too late and therefore cannot use their newly purchased roster of service side arms.

There is a much more comprehensive blog post on Full30 at the following link, which was referenced for much of the material above, if you would like to read more about this SNAFU: https://blog.full30.com/ca-gun-law-stupidity-knows-no-bounds/.

However, not all the news recently makes you want to slam your head against the wall repeatedly. Come to think of it that might make that a semi-automatic assault wall which would also be illegal in California. It also used to be illegal in Maryland until the good news was handed down by the Maryland 4th Circuit Court of Appeals in the Kolbe v. Hogan decision. The case challenged the 2013 Maryland arms prohibition statute which bans the sale of firearm magazines that hold more than 10 rounds and also bans many firearms, by labeling them as “assault weapons.”

Some of the important highlights which were reported in the Washington Post include:

In a 2-1 decision written by Chief Judge Traxler [appointed by President Clinton in 1998], the Fourth Circuit held that strict scrutiny is the proper standard of review for bans on common arms, such as those at issue in Kolbe. The case was remanded to the district court, which had applied the wrong standard, namely a weak version of intermediate scrutiny. The Maryland attorney general announced that he will seek en banc or Supreme Court reversal of the Kolbe decision. Below is a summary of the most important parts of the Kolbe decision.

Why the arms are part of the Second Amendment

Magazines holding more than 10 rounds are “common” and “standard.” There are more than 75 million of them in the United States. Indeed, “most pistols are manufactured with magazines holding ten to 17 rounds.” In fact, “Virtually every federal court to have addressed this question” has found that magazines over 10 rounds are in “common use,” and thus are covered by the Second Amendment.

Why strict scrutiny is appropriate

First, because the prohibition “burdens the availability and use of a class of arms for self-defense in the home, where the protection afforded by the Second Amendment is at its greatest.”

Second, because the burden is substantial, “not merely incidental.” For example, the statute imposes “a complete ban” on “AR-15 style rifles—the most popular class of centerfire semi-automatic rifles in the United States.” Notably, the ban “also reaches every instance where an AR-15 platform semi-automatic rifle or LCM [large capacity magazine] might be preferable to handguns or bolt-action rifles–for example hunting, recreational shooting, or competitive marksmanship events, all of which are lawful purposes protected by the Constitution.”

Strict scrutiny was also appropriate for the magazine ban, because “a citizen’s ability to defend himself and his home is enhanced with an LCM.” For example, the inherent difficulties of some defense situations mean that citizens often need the ability to fire multiple shots, and changing magazines while under violent attack may not be possible.

A statute that “completely prohibits, not just regulates, an entire category of weaponry . . . might be ‘equivalent to a ban on a category of speech.'” (Quoting D.C. Circuit Judge Kavanaugh’s dissent in the Heller II case.) The extensive prohibition is “akin to a law that ‘foreclose[s] an entire medium of expression.’ City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994). Such laws receive exceptionally rigorous review in the analogous context of the First Amendment, id., and we see no reason for a different method here.”

Unlike some other courts that have upheld magazine and firearms bans, the Kolbe majority did not purport to be expert in gun-fighting tactics, or to claim that judges know what law-abiding citizens “need” for self-defense. To the contrary, the 4th Circuit recognized that under the Second Amendment and Heller, choices about self-defense are reserved to the defenders. For “whatever reason” particular arms are preferred by particular law-abiding citizens, “The right to self-defense is largely meaningless if it does not include the right to choose the most effective means of defending oneself. . . . The extent of danger—real or imagined—that a citizen faces at home is a matter only that person can assess in full.” (Quoting 7th Circuit Judge Manion’s dissent in Friedman v. Highland Park).

In the short term, this reestablished the second amendment rights of the citizens of Maryland but that it the short sighted measure of this case. The reaffirming ramifications of this decision could potentially be applied across the nation serving as the judicial support, firepower if you will, sometimes needed to protect and defend affronts to our Constitutional rights. Nicely done Maryland. Glad there are some in the courts will to take a stand and do something that the President refuses to do… defend the Constitution of the United States of America!