SCOTUS accepted a pair of assault weapons cases for this term. Given how closely related they are they’ve been combined into one large case with oral argument scheduled in December. While this SCOTUS will be known by history as the first to drastically limit or even take away rights there are a few areas where they’ve relished the chance to expand them. One is gun rights, as in saying yes to some crazy demands from Second Amendment goobers. There are however signs, albeit faint ones the conservatives on the Court are looking at what they’ve wrought and thinkin maybe they took things to far. What’s astounding is that Justice Kavanaugh could turn out to be the key to the lock of regained sanity when it comes to gun control
Yes, Kavanaugh. I’ll give you a minute to regain your composure…. Ready? As this article from The Hill says, anytime gun control is on the Court’s docket gun control advocates are justified in worrying what batsh!t crazy expansion of gun rights they will grant next. It’s a fairly detailed article that cites a lot of decisions. My instinct is to try and break it all down, but I’m well aware of my reputation for diving into the weeds and boring people. So I promise to keep this readable by sticking mostly to broad themes. If you want details then set aside eight to ten minutes to read and digest the linked article.
It opens with what the author freely admits is the bad news. And yes, the article cites a list of decisions that have led to our country having almost four times as many privately owned firearms as ALL the militaries in the world combined. As you know, every time we’ve had a particularly memorable (in the worst possible way) mass shooting gun rights goobers and even what you might consider relatively thoughtful and sane conservatives say two things. First, they offer ‘thoughts and prayers.’ You know what? These same people who preach about the value of prayer don’t seem to be very good when it comes to prayers on this subject. Perhaps because said prayers are mingled with thoughts of the second thing they always say. Which is the answer is NOT gun control, but more freaking guns and to damned near any person who wants one!
Take a look at the title picture which is a small portion of the aftermath of the worst mass shooting in our history. One deranged asshat (yes, a MAGA hat and/or the wearer of one is literally an asshat as far as I’m concerned) used a semi-auto assault rifle fitted with a bump stock (made fully legal and available by GOP appointees to SCOTUS) that turns a semi-auto into a nearly fully automatic weapon (cyclic rate with a bump stock can reach 800 rounds per minute), and there are other so-called conversion kits out there. Or, not to be too technical but if someone doesn’t mind never being able to use a semi-auto assault rifle in non-automatic fire mode all they need to do is knock off the sear in the inner workings of the gun) and that’s that.
I could get into the debate of the regular semi-auto long gun/rifle vs. an assault weapon but I promised not to get into that kind of detail here. It’s a separate issue I’ve written about before and no doubt will again. The point is that ever since Columbine mass shootings have not just continued but increased in frequency. With the expiration of the assault weapons ban enacted in the 1990s and a friendly to gun rights goobers SCOTUS mass shootings jumped. For some years now they haven’t been merely a weekly, but almost daily event in this country. Some, since they happened in schools are burned into our memory. Sandy Hook. Parkland. Uvalde. Then there are high dead and wounded mass shootings in places of worship.
With GOP legislators leading the way and SCOTUS removing obstacles manufacturers worked with the NRA to market assault weapons. As someone who grew up hunting I’d never have used a freaking assault rifle. (FYI, the only reason I don’t still hunt is I’m disabled now) The carnage has been appalling and as I said it’s increasing. Dare we hope that SCOTUS conservatives, at least two or three of them are looking at the country their grandkids will have to live in and thinking maybe it’s time to pump the brakes?
The author of the linked article isn’t predicting it will happen but suggests such a sentiment might be at least in the backs of their minds. And none other than Brewski Brett Kavanaugh provided the tool that might lead to altering the expansive attitude SCOTUS has had, at least with rights/topics that are dear to conservatives’ cold, black hearts.
It boils down to a rewriting of what had been a long established doctrine of sometimes in the public interest certain amendments in the Bill of Rights can be subjected to what’s called a balancing test – the overall public interest vs. say the First Amendment. You can’t for instance yell fire in a crowded theater. With the Second Amendment gun control used to be subject to the same test in some cases. That all changed with the ridiculous Bruen ruling in 2021 which held that which held that “restrictions on individual firearms ownership are presumptively unconstitutional under the ‘plain text of the Second Amendment’”:
The Republican supermajority explicitly rejected the longstanding approach of balancing government interests against individual rights, which has been used, for example, to evaluate freedom of speech claims under the First Amendment and unlawful search claims under the Fourth Amendment.
Instead, Bruen adopted a “history and tradition” test, under which gun laws can be upheld only if they are consistent with the “nation’s historical tradition of firearm regulation.” But this prevents appropriate restrictions on guns that are far more powerful than anything historically available to the public.
So absent a sufficiently analogous restriction, enacted some time before the 20th century, gun regulations are invalid, even if they address the sort of “compelling governmental interests” that could justify limitations on other constitutional rights.
The Supreme Court’s firearms jurisprudence rejects consideration of the underlying purposes of gun control in favor of a nearly impossible to meet historical test, no matter how compelling the reasons for the legislation.
I called bullshit on this decision citing ‘historical context’ for two reasons. First, some places had gun control laws both before and long after the Constitution and Bill of Rights was ratified. Second, that was at a time when people in some places would have been put to death for practicing witchcraft for turning on an electric light, or using a telephone, or flying in a plane. Hell, when the first balloon flight (a hot air balloon) took place (in France) it rose to great cheers. It of course drifted a ways before eventually coming down in a farm field. Whereupon the balloon itself and it’s pilot were attacked by peasants with pitchforks! When the Constitution was ratified firearms, both (smoothbore and not accurate at a distance) and pistols (wildly inaccurate at even ten paces – dueling distance) were single shot.
Worse, because percussion caps hadn’t been invented they were ignited by a bit of power in a flash pan which often led to misfires. Too much powder would spill out, or get wet. A gun that could fire multiple shots as fast as someone could pull the trigger would likely have been considered a tool of the Devil himself. Reloading for a second shot and more was a cumbersome process. To illustrate the idiotic rationalization of ‘historical context” the Court came up with I call your attention to an ad. A gun control PSA showing a man walking into the office to do a mass shooting using a musket, and not even one as primitive when the Second Amendment was ratified. No doubt due to political pressure it became age restricted so you’ll have to go to YouTube and jump through that hoop but it makes the point. Here’s the link to the ad titled Ed – A Petition For Stronger Gun Control:
For all I’ve said, the linked article offers some hope. After detailing the two cases about to be heard by the Court, one from Illinois and one from Connecticut which were both the result of mass shootings the author notes the Court has already backed away some from the virtually unlimited gun rights bestowed in the Bruen decision:
But all is not lost. The Supreme Court has already backed away from the most absurd consequences of the Bruen standard. In U.S. v. Rahimi, an 8-1 majority greatly relaxed the “history and tradition” requirement to avoid leaving guns in the hands of domestic abusers.
Perhaps common sense will also prevail in the assault weapons cases. If so, Justice Brett Kavanaugh, ordinarily quite friendly to gun rights, has already shown the way.
In the recent birthright citizenship case (Trump v Barbara) Kavanaugh’s concurring opinion said exceptions to constitutional rights might be expanded if “new circumstances” shaped by subsequent developments “largely unknown or unanticipated” at ratification arose. While the author doesn’t say it, what he’s getting at is that this opens a door. Just as in a trial cross-examination is typically limited to what was raised on direct examination of a witness, if the first lawyer ‘opens the door’ to a line of questioning their opponent can’t raise on their own then once the door is opened with even a single comment or question opposing counsel can walk right through it and proverbially roam around the room.
What the author does say is that while Kavanaugh was thinking in the context of “significant illegal immigration” and the advent of air travel, his “unanticipated” developments (and I for one say development of repeating weapons, then semi-auto and finally fully automatic ones qualifies) his analysis also maps quite neatly on to gun regulations. The proliferation of semiautomatic weapons has had far greater consequences for public safety than air travel has had for 14th Amendment citizenship.
Whether he meant to or not, Kavanaugh opened the door to revisiting history and what firearms existed when the Constitution was ratified. I’m sure many a hunter trying to put food on the table back then wished they had even a double barreled rifle or scattergun back then but such things didn’t exist. The notion of a firearm that could hold five or six rounds might have occurred to them but it would have been considered a as ridiculous a fantasy as airplanes. Or going to the moon. Or automobiles. Or electricity run to homes to power appliances. Or high capacity military style assault weapons!
I might not be offering much hope tonight but there’s an argument to be made by those making the case to allow the Illinois and Connecticut bans to stand. The exhibits provided in the briefs filed before oral argument should be liberally sprinkled with images like the one in the title picture. I’d love to hear Justice Jackson cite them in oral arguments and put the Court’s conservatives on the spot! Stinging their consciences that way and in the Christmas season just might inject some humanity and common sense in at least two of the GOP appointees.
Friends, I know everyone begs you for money. I promise, among all those asking for spare change, we are the smallest and the hardest working. We’re a group of old, disabled people, except for one writer in his mid-50s. The rest of us are in our sixties and seventies, and this is a labor of love. All we’re asking for is the chance to keep telling the truth about Trump and help ensure democracy survives. If you can help, please do. Thank you. Ursula
