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With Friends Like These…
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The current challenge to the District of Columbia’s gun laws is the first Supreme Court case to directly consider the right to bear arms in seven decades. DC law virtually bans handguns, and it requires that long guns be non-functional when stored.

So it’s disappointing that a “pro-gun” presidential administration filed a brief Friday arguing that the appeals court went too far by ruling that handgun bans are categorically unconstitutional. The Second Amendment reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

It wouldn’t be so bad if the Justice Department actually put forth a logical argument. The federal government enforces gun laws, including strict regulations on fully automatic weapons, and a Supreme Court ruling could in theory interfere with this duty. Unfortunately, the brief settles for knocking down straw-men in the place of the appeals court’s actual arguments.

It’s important to understand the court’s precise logic. It started by finding that the Second Amendment protects a right of individuals to own weapons, not a right of states to arm militia members. The Justice Department, thankfully, agrees.

But this raises two questions: (A) What kinds of guns does the Second Amendment refer to when it says “Arms,” and (B) what regulations may the government place even on those weapons?

On the first question, the court looked at the weapons ordinary people owned in Founding era. Based on the second Militia Act of 1792, the court reasoned:

“It follows that the weapons described in the Act were in ‘common use’ at the time, particularly when one considers the widespread nature of militia duty . . . [T]he Act distinguishes between the weapons citizens were required to furnish themselves and those that were to be supplied by the government . . . The Act required militiamen to acquire weapons that were in common circulation and that individual men would be able to employ, such as muskets, rifles, pistols, sabres, hangers, etc., but not cumbersome, expensive, or rare equipment such as cannons.”

From this, one can deduce that the Founders meant to include rifles and pistols when they wrote “Arms.” The court further wrote, of handguns:

“The modern handgun — and for that matter the rifle and long-barreled shotgun — is undoubtedly quite improved over its colonial-era predecessor, but it is, after all, a lineal descendant of that founding-era weapon, and it passes Miller‘s standards. Pistols certainly bear ‘some reasonable relationship to the preservation or efficiency of a well regulated militia.’ They are also in ‘common use’ today, and probably far more so than in 1789.”

On the second question, the court decided, quite logically, that an outright ban on any of the protected weapons would be unconstitutional. However, some regulations short of bans would be OK. The Second Amendment does not, in the court’s view, guarantee a right to carry a concealed weapon. Gun registration and proficiency testing are acceptable. Prohibitions on gun ownership by people who exhibit “insanity or felonious conduct” don’t infringe a constitutional right.

With the ruling in mind, this Bush administration gem has to be one of the dumbest statements ever to make it into an official government statement:

“The court’s decision could be read to hold that the Second Amendment categorically precludes any ban on a category of ‘Arms’ that can be traced back to the Founding era. If adopted by this Court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns.”

FIRST OFF, MACHINE guns cannot be “traced back to the Founding era.” Such a situation would have given early patriots a leg up when it came to mowing down Redcoats (Say ‘ello to my little friend!), but it just wasn’t so.

The Justice Department argues that M-16s could be seen as “lineal descendants” of colonial arms, but automatic weapons use firing mechanisms that differ completely from those of standard guns. 1861’s hand-crank-powered Gatling gun, followed by the self-reloading Maxim machine gun two decades later, clearly created a whole new method for spraying lead.

More importantly, even granting the ludicrous notion that machine guns are Founding-era weapons at heart, recall the appeals court’s assertion that the Second Amendment doesn’t protect all arms “that can be traced back to the Founding era.” It protects arms akin to those in “common use” at that time, and those that are in “common use” today.

When it comes to the distinction between bans and other regulations, well, the administration has a hard time keeping that one straight. It specifically notes that the appeals-court interpretation “both secures individual rights and allows ‘reasonable restrictions,'” but editorializes, “the Second Amendment’s protection of individual rights does not render all laws limiting gun ownership automatically invalid” as though that runs counter to the decision. The brief also spends an entire page defending prohibitions on felons owning guns, even though neither side disputes the validity of said prohibitions.

The administration proposes that courts “should consider (a) the practical impact of the challenged restrictions on the plaintiff’s ability to possess firearms for lawful purposes (including the nature and practical adequacy of the available lawful alternatives), and (b) the strength of the government’s interest in enforcement of the relevant restriction.” It takes no position as to whether the DC laws would pass such a test.

In other words, the courts should decide whether, in a given circumstance, a given policy is good enough to warrant a given degree of infringement on gun rights. They shouldn’t decide that the words “shall not be infringed” prohibit certain policies in all circumstances. This is squishy jurisprudence at best.

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