Federal Court rules prohibition of interstate handgun sales unconstitutional

Federal Court rules prohibition of interstate handgun sales unconstitutional

A Federal judge ruled the prohibition of interstate handgun sales is unconstitutional. At issue in the case, Mance v. Holder, is a federal requirement under the 1968 Gun Control Act (GCA) that prohibits interstate handgun transfers to citizens who are not residents of the state in which the transaction occurs. Rifles and shotguns may be legally transferred to non-state residents, but not handguns. The plaintiffs argued that the federal interstate handgun ban makes no sense in the advent of the National Instant Check System (NICS), a federal background check system administered by the FBI that is required under the 1993 Brady Bill, which amended the 1968 GCA.

The plaintiffs argued the federal interstate handgun ban places an undue burden on a citizen’s right to exercise the Second Amendment and sued the government (U.S. Attorney General Eric Holder is the defendant in the case). U.S. District Court Judge Reed O’Connor of the Northern District of Texas, Fort Worth Division agreed with the plaintiffs; the court found the federal interstate handgun ban violates both the Second Amendment and the Due Process clause of the Fifth Amendment. The decision could have far-reaching ramifications.

Background
These are the facts of the case: the plaintiffs, the Hansons, a husband and wife who reside in Washington, D.C., wished to buy two handguns from Mance, a Federal Firearms Licensed (FFL) dealer while in Texas. They were legally able to possess the firearms, and the sale would have been perfectly legal in both Texas and D.C.. The sale requires a background check through the NICS system at the point of sale – Texas in this case. However, the federal interstate handgun ban requires that the Hansons would have to have to pay to have the firearms shipped by Mance in Texas to a FFL dealer in D.C. There is only one FFL in D.C., Sykes, and Sykes keeps no inventory in stock. Once shipped to Sykes, an additional background check through NICS would be required and the Hansons would be required to pay additional transfer fees of $125 per firearm before they could take possession of them. Not wishing to pay the extra fees, they opted to not complete the purchase and Mance lost the sale.

The law violates the Second Amendment
The court’s decision stated that the law is both unconstitutional on its face (without examining specifics from the case), and that it is unconstitutional when applied to the specific facts of the case. Judge O’Connor stated “The Court concludes that Defendants have not shown that the federal interstate handgun transfer ban is narrowly tailored to be the least restrictive means of achieving the government’s goals under current law. The federal interstate handgun transfer ban is therefore unconstitutional on its face.” Additionally the ruling stated the “federal interstate handgun transfer ban is unconstitutional when applied to the facts of this case,” saying “the manner in which a statute was applied to the plaintiff… violated the Constitution.”

The court cited two landmark Supreme Court cases, D.C. v Heller and McDonald v Chicago, in the decision. Quoting from Heller the court reiterated “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” And citing both Heller and McDonald, stated: “the scope of the Second Amendment right depends not on post-twentieth century developments, but instead on the understanding of the right that predominated from the time of ratification.”

The court said that if a law regulates activity that falls “outside the scope of the Second Amendment right as it was understood at the relevant historical moment – here, 1791 – then the analysis can stop there.” The court did find an “absence of any evidence of founding-era thinking that contemplated that interstate, geography-based, or residency-based firearm restrictions would be acceptable”. Therefore, the court ruled “the federal interstate handgun transfer ban burdens conduct that falls within the scope of the Second Amendment.”

The law violates the Due Process clause of Fifth Amendment
The court found the federal interstate handgun ban violates the Due Process clause of the Fifth Amendment. The court stated “Here, the federal interstate handgun transfer ban interferes with the exercise of a fundamental right.” The court further found that the ban “not only creates a discriminatory regime based on residency, but it also involves access to the constitutional guarantee to keep and bear arms.” The court stated the federal interstate handgun transfer ban “targets the entire national market of handgun sales and directly burdens law-abiding,responsible citizens who seek to complete otherwise lawful transactions for handguns.”

The law does nothing from a policy perspective to stop crime
The case demonstrates the law is ineffective from a policy perspective, noting that “as law-abiding, responsible citizens, the Hansons likely do not pose the threat to public safety that motivated Congress to enact the federal interstate handgun transfer ban.” The government, defending the federal interstate handgun ban, argued the government has a compelling reason to restrict gun rights to combat handgun crime. They argued the handgun ban combats the “serious problem of individuals going across state lines” to obtain guns they couldn’t otherwise obtain. To back their claims, the government cited the original 1968 Senate report that showed criminals crossed state lines to buy handguns from dealers to avoid local or state restrictions as justification to uphold the ban. But the court said the government failed “to show how the federal interstate handgun transfer ban alleviates, in a material way, the problem of prohibited persons obtaining handguns simply by crossing state lines … under the amended version of the 1968 Gun Control Act” (emphasis added). The court noted that the current NICS infrastructure didn’t exist in 1968, and the government relied solely on the Senate Report to the 1968 Gun Control Act to support the current need for the federal interstate handgun transfer ban.”

Virginia attorney Alan Gura, an attorney for the plaintiffs, said: “It is bizarre and irrational to destroy the national market for an item that Americans have a fundamental right to purchase. Americans would never tolerate a ban on the interstate sale of books or contraceptives. And Americans are free to buy rifles and shotguns outside their state of residence, so long as the dealers respect the laws of the buyer’s home state. We’re gratified that the Court agreed that handguns should be treated no differently.”

Attorneys for the plaintiffs indicated that the government is likely to appeal, but they are confident the ruling will be upheld. The government was denied a 60-day stay request to ‘think about’ whether they want to appeal. If they do, the next steps would be the appellate courts and then the Supreme Court. Given that the case was decided based heavily on the two latest Supreme Court gun rights cases, it seems unlikely the decision would be reversed.

The court decision in its entirety is here:

http://2ndamendmentfight.com/wp-content/uploads/2015/04/Mance-v-Holder-interstate-handgun-sales.pdf

The Second Amendment Right Extends Outside The Home, Pt 2

The Second Amendment Right Extends Outside The Home, Pt 2

The Second Amendment right extends outside the home. In part one, we examined five lawful purposes protected by the Second Amendment as laid out by the supreme Court in the landmark case, D.C. v Heller. Here in part two we take a look at further evidence that demonstrates the right of the people to keep and bear arms extends outside of the home.

In part one, we saw that the Court ruled the D.C. handgun ban violated one of many lawful purposes – plural – of the Second Amendment, “such as self-defense within the home” (emphasis added). We see further the Court lists at least five lawful purposes – hunting, militia duty, repelling a foreign invader, suppressing insurrection, and resisting tyranny – that involve or require activity outside of the home. We can conclude from this that the right to keep and bear arms cannot be restricted to simply keeping a gun in the home.

Here in part two, we expand upon the core lawful purpose, which the Court specified in Heller is self-defense: “the inherent right of self-defense has been central to the Second Amendment right” (p.56). If one gets anything from the Heller decision, this must be it. The Court reiterated this finding in McDonald v Chicago in 2010, stating: “Two years ago, in District of Columbia v. Heller, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense” (Syllabus, p.1).

Self-defense can – and often does – involve a person outside of their home. Skeptics rely on reading into the Courts decision a limitation that the Court itself has not stated, postulating that “self-defense” might mean ‘self-defense… as long as you’re in your home; but nowhere else’ because the Court struck down a law that prohibited guns in the home. But the Court itself did not specify guns for self-defense in the home only as the sole legitimate purpose, and this imagined limitation is artificially imposed in the minds of those that wish to limit others right to keep and bear arms protected by the Constitution.

The Court’s ruling in Heller sheds light on this. To recap, the Court thoroughly examines every word of the Second Amendment, defining it in historical context, legal precedent, and explaining how the right to keep and bear arms was viewed from English law to Colonial law, to the formation of the United States, post-ratification of the U.S. Constitution, through the post-Civil War era. It is clear from the historical documentation the people understood the right to keep and bear arms as part of the “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defense” (p.20). “They understood the right to enable individuals to defend themselves. Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury” (p. 21). The Court notes that “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad” (p. 63). This means that understanding how the right to keep and bear arms at the time of ratification is critical to understanding what is protected in the Second Amendment today. There is no logical reason to conclude self-defense is limited solely inside one’s home, or that “self-preservation”, “repelling force with force”, or defending oneself suddenly stops because one is outside of the home.

Relevant to our understanding is the Court’s historical definition of what “keep” and “bear” meant. Keeping arms means to carry or have in one’s possession. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.” (p.9) The Court states: “the most natural reading of “keep Arms” in the Second Amendment is to “have weapons”” (p.8). “Bear arms” is synonymous with “carry arms”, “possess arms” and “have arms” (p. 14). “At the time of the founding, as now, to “bear” meant to “carry.” When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose — confrontation” (p.10). The Court says through examining historical source material, “In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia” (p.11). In Heller, the Court concurs with its prior definition from Muscarello v. United States, “in the course of analyzing the meaning of “carries a firearm” that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person” (p.10).

We can see that within the core lawful purpose of the Second Amendment of self-defense the terminology means to keep arms on one’s person in case of confrontation and the need to defend oneself. To suggest the right to self-preservation or self-defense in the face of confrontation and potential bodily harm is limited solely to the home is absurd. The common person’s understanding of their protected right of self-preservation logically extends outside the home. This is also consistent with the five previously covered lawful protected purposes that involve or require activity outside the home.

 

This article was originally published on Brenner Brief. Original publish date Nov 26, 2013. Original author, Matt MacBradaigh.

The Second Amendment Right Extends Outside The Home, Pt 1

The Second Amendment Right Extends Outside The Home, Pt 1

The Second Amendment right is not limited to one’s home. Some observers speculate that the right to keep and bear arms might mean inside one’s home only. However the landmark Supreme Court case, D.C. v  Heller clearly demonstrates this assumption is incorrect and the Second Amendment extends out of the home.

Restricting gun possession outside of the home is clear violation of the Second Amendment and intent of the protected right to keep and bear arms guaranteed in the Constitution at the time of ratification. Constitutional rights are supposed to be understood by common people – not requiring primary education, plus a 4-year college degree, a 3-year law degree, and years of professional experience interpreting case-law to understand your pre-existing rights that are protected by the Constitution. Obtuse lawyers, analysts and so-called ‘pundits’ seem to miss the forest for the trees. There’s a reason for this: they look at what a particular case actually ruled on, and the Supreme Court only ruled on a very specific question – ‘is a law that prohibits gun possession in one’s home constitutional?’. The Supreme Court ruled in D.C. v Heller that it is not constitutional. Ergo, some short-sighted commentators take that to mean that the Court has “been silent” on the question of whether gun possession outside of the home is protected under the Second Amendment.

Not so fast.

The Court provided in-depth reasoning as to why the law was invalid, defining every one of the 27 words that comprise the Second Amendment, explaining the words meaning at the time of ratification, the legal history of the right to keep and bear arm from England to Colonial America, and how it was viewed after the ratification of the U.S. Constitution through the post-Civil War era. From this thorough examination, we can clearly see the absurdity of the supposition that the Second Amendment only means you can keep a gun in your home because of the Supreme Court’s ruling in Heller. At no point in Heller did the Court say the Second Amendment only protected the right to keep and bear arms in the home. Let’s look at what the Court did say:

“Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home” (Syllabus, page 1).

Notice it says “for lawful purposes” – plural – and then says “such as self-defense within the home”. This means that self-defense within the home is one of several lawful purposes, not the sole lawful purpose for which the right to keep and bear arms is protected. Further, the Court explicitly mentions several other lawful purposes in Heller.

Though the Court says the Second Amendment is not dependent upon service in a militia or military unit (p.11-12), it is also clear that militia service is a protected lawful purpose. To be clear, this does not mean the National Guard, which didn’t exist as we know it today didn’t until 1903. The Court clearly states in Heller that the militia were (and still are under Federal law) all able-bodied males (p.23). It should be obvious that militia perform its duties outside of the home.

Hunting is a specifically mentioned lawful purpose in Heller: “most undoubtedly thought it even more important for self-defense and hunting” (p. 26). Hunting, in virtually all cases, means outside of the home. One could not take seriously the idea that hunting is only lawful inside ones home. There is no suggestion in Heller that the Court implied this, only that D.C.’s unconstitutional law violated one of the Second Amendment’s lawful purposes.

The Court notes an additional three lawful protected purposes in discussing the meaning of the phrase ‘the security of a free state’, repelling invasion, suppressing insurrection and resisting tyranny: “it is useful in repelling invasions and suppressing insurrections… when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny” (p.24-25). All listed lawfully protected purposes logically must involve citizens outside their home; repelling a foreign invader could not be done solely within one’s home, nor could suppressing an insurrection, or resisting government tyranny.

An objector may reason that these purposes aren’t necessities in the way they may have been at the time ratification. This is irrelevant, as the Court states: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad” (p.63). At the time of adoption, this is how the right was understood and all are lawful purposes regardless of whether future generations would exercise the lawful purpose later. The fact remains they are lawful purposes, require the people to be outside of their homes, and therefore demonstrate the idea that the Second Amendment’s lawfully protects guns outside of the home by necessity.

We see from Heller itself that the Court lists multiple lawful purposes in plurality, not restricting the Second Amendment to a singular lawful purpose. The Court explicitly details at least five purposes that involve or require activity outside of the home. Therefore we can easily conclude the suggestion that the Court has ruled – or could rule – that the only lawful purpose is gun possession for self-defense within a home, is absurd, defying logic and reason as well as the explicit written letter of the ruling.

Be sure to check out part two of this series as we continue to look at why the Second Amendment protects your right to keep and bear arms outside of the home.

 

 

This article was originally published on Brenner Brief. Original publish date Nov 22, 2013. Original author, Matt MacBradaigh.

Banning Detachable Magazines, Pt 2: Banning Would Violate The Second Amendment

Banning Detachable Magazines, Pt 2: Banning Would Violate The Second Amendment

Banning detachable magazines is all the rage among the anti-gun crowd. However, several recent Supreme Court cases clearly demonstrate that such a law would violate the Second Amendment. The Court has repeated ruled that weapons “in common use at the time” are protected for use by the Second Amendment. Firearms with detachable magazines have been “in common use” for over a century.

As noted in part one of this series, California’s state legislature passed a bill that would have banned firearms that accept detachable magazines. The bill failed to become law only because California Governor Brown vetoed it. Gun control advocates have recently put forth the idea of banning detachable magazines as a means of crime reduction or reducing mass murders. MIT Economics Professor Chris Knittel’s made this suggestion in an OpEd earlier this year. The idea has also been put forth by other anti-gun fanatics and unscrupulous politicians. In part one, we covered why the banning detachable magazines would not have any measurable impact on crime, homicides, or decrease in mass murders. Here in part two, we will cover why a ban on detachable magazines would be unconstitutional in violating the Second Amendment.

In several recent (and one not-so-recent) cases, the Supreme Court has ruled that the Second Amendment: protects the individual’s right to keep and bear arms (D.C. v Heller, 2008); that arms lawfully protected are those “in common use at the time” (U.S. v Miller, 1939; Heller, 2008; McDonald v Chicago, 2010); and the 14th Amendment extends Second Amendment protections to all states (McDonald, 2010). In the light of these Supreme Court rulings, it is clear any state or federal law banning detachable magazines would violate the Second Amendment’s protections to the people’s civil right to keep and bear arms.

In Heller, The Supreme Court defined what “arms” means in legal and historical context:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today…defined “arms” as “weapons of offen[s]e, or armor of defen[s]e.”…Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another” (p.7).

Thompson Tommy Gun, invented in 1919 and features detachable magazines

Thompson Tommy Gun, invented in 1919 and features detachable magazines

All firearms constitute arms according the Supreme Court: “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” (p.8). While this doesn’t mean any arms whatsoever, in Heller the Court upheld previous legal restrictions from Miller on “dangerous and unusual” weapons. It should be noted that “dangerous and unusual” weapons are specifically defined and highly regulated under the 1934 National Firearms Act (NFA). They are also not “banned”, but are legal to own, provided the proper paperwork is filed with the ATF. “Dangerous and unusual” does not mean semi-automatic rifles and handguns, which are not regulated by the NFA.

The Court stated that what is protected are arms “in common use at the time” in Miller, Heller and McDonald. Rifles with magazines have been in existence for nearly two centuries. A magazine is an ammunition storage and feeding device in a firearm, and may be internal or detachable. All rifles, with the sole exception of single-shot rifles, have them. Rifles with magazines have been common since the 1800′s; the first bolt-action rifle was invented in 1824. Bolt-action and lever-action rifles with magazines became increasingly prevalent throughout the 1800′s: the Spencer repeating rifle utilized a tube magazine, while the M1885 Remington-Lee which featured an internal box magazine.

 Colt .45 handgun, featuring detachable magazines. Invented in 1911, still “in common use” today.

Colt .45 handgun, featuring detachable magazines. Invented in 1911, still “in common use” today.

Detachable magazines have existed since the early 1900′s. The 1911 Colt .45 handgun, still “in common use” today, features detachable magazines. The Thompson “Tommy Gun” rifle, invented in 1919, also features detachable magazines. The Remington Model 8 and 81, first developed in 1906 with attached box magazines, was adapted in the 1920′s for detachable box magazines. Today, detachable magazines are common in everything from bolt-action rifles, like the Remington 700 to semi-automatic rifles like the AR-15, Mini-14, M-14, FAL, G3/H&K 91 type, AK47 variants and many others, and virtually all semi-automatic handguns. Because today’s detachable magazines are so common, many people think of magazines as separate objects, but they are integral to the function of rifles.

Schematic of Remington Model 81 magazine. Model 8′s & 81′s were invented in 1906; detachable magazines were available by the 1920s.

Schematic of Remington Model 81 magazine. Model 8′s & 81′s were invented in 1906; detachable magazines were available by the 1920s.

The Court has also said in Heller it is unconstitutional to ban an entire class of weapons popularly chosen by the American people (p.56-57). The Court also said that constitutionally protected rights are not subject to an interest-balancing approach, meaning the right can’t be limited just because gun violence is a problem (p.62-63). The Court states, “we are aware of the problem of [gun] violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution…But the enshrinement of constitutional rights necessarily takes certain policy choices off the table” (p.64). Similarly, semi-automatic rifles and handguns that utilize detachable magazines have been overwhelmingly chosen by the American people for lawful purposes including home and self-defense and hunting. The Court stated in Heller “as we have explained [from Miller], that the sorts of weapons protected were those “in common use at the time” (p.55). A law banning them would violate the Second Amendment.

 

This article was originally published on The Brenner Brief. Original publish date Nov. 7, 2013. Original author, Matt MacBradaigh.

State Magazine Capacity Laws Violate the Second Amendment

State Magazine Capacity Laws Violate the Second Amendment

State magazine capacity laws violate the Second Amendment. Nearly all state laws were passed prior to recent Supreme Court gun rights cases, but in the light of the rulings they clearly violate the people’s right to keep and bear arms.

Several states have laws restricting the capacity of magazines in firearms. With the exception of Colorado, these laws were passed prior to several recent Supreme Court gun rights cases. However, now the Court has ruled that the Second Amendment: protects the individual’s right to keep and bear arms (D.C. v Heller, 2008); that arms lawfully protected are those “in common use at the time” (U.S. v Miller, 1939; Heller, 2008; McDonald v Chicago, 2010); and the 14th Amendment extends Second Amendment protections to all states (McDonald, 2010). In the light of these Supreme Court rulings, it is clear that magazine capacity restriction laws violate the Second Amendment’s protections to the people’s civil right to keep and bear arms.

The Second Amendment protects the right of the individual to keep and bear arms – not ‘the right to own a single-shot musket’, but “arms”. In Heller, The Supreme Court defines what “arms” means in legal and historical context:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today…defined “arms” as “weapons of offen[s]e, or armor of defen[s]e.”…Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another” (p.7).

 

All firearms constitute arms according the Supreme Court: “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” (p.8). While this doesn’t mean any arms whatsoever, in Heller the Court upheld previous legal restrictions from Miller on “dangerous and unusual” weapons, they also re-affirmed that what is protected are weapons “in common use at the time”. This is further upheld in McDonald.

Rifles with magazines have been in existence for nearly two centuries and are in very common use today. The ATF defines a rifle as “any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive” under Federal law § 921(a)(3)(A). Magazines are a part of the rifle, and all rifles, with the sole exception of single-shot rifles, have them. A magazine is an ammunition storage and feeding device in a firearm. Magazines can be detachable or internal. Without the magazine, rifle function is impaired, or is nonfunctional; some firearms will not fire unless the magazine is attached. Federal law considers magazines to comprise 3 of the 20 parts of a firearm under section § 922(r).

Rifles featuring magazines have been commonplace since the 1800′s. At this time, magazines were internal. The first bolt-action rifle was invented in 1824. Bolt-action and lever-action rifles with magazines became increasingly prevalent throughout the 1800′s: the Spencer repeating rifle utilized a tube magazine, while the M1885 Remington-Lee which featured an internal box magazine. Since the early 1900′s, modern rifles more commonly have detachable magazines. The 1911 Colt handgun, still “in common use” today, features detachable box magazines. The Thompson “Tommy gun” was invented in 1919 and features detachable box and drum magazines. The Remington Model 8 and 81, first developed in 1906 with attached box magazines, were later adapted for detachable box magazines.

Today, detachable box magazines are common in everything from bolt-action rifles, like the Remington 700 to semi-automatic AR-15s, as well as virtually all semi-automatic handguns. Because today’s detachable box magazines are so common, many people think of magazines as separate objects, but they are integral to the function of rifles. So-called “high capacity” or “large capacity” magazines are ‘standard’ every place not prohibited by law.

How common are they? No one has a precise count of magazines, but the numbers easily range from tens of millions to billions. AR-15 variants, for instance, are designed to use a 30 round magazine as standard. NATO countries created the STANAG protocol to standardize magazine features including 30 round capacity. Over 70 countries have produced tens of millions of rifles that accept STANAG magazines with magazine production for these rifles possibly into the billions. Similarly, AK47 variants – with standard 30 round magazines – number an estimated 100 million produced, with magazine production also likely in the billions. It is legal to import these magazines into the U.S. This is just two popular rifles; there are many others, like the Mini-14, FAL, Uzi, H&K 91, and others. Estimates of so-called “high” capacity magazines in the U.S. range from 40 million to 130 million. A 2004 report to the Dept. of Justice (at the close of the ten-year Federal Assault Weapons Ban, which included ban on new production magazines over 10 rounds) estimated nearly 30 million “large capacity” magazines. Millions have been produced and imported every years since the ban was ended. According to the ATF, over 6.5 million firearms were manufactured and over 3.2 million firearms imported in 2011 alone. Major U.S. firearms manufacturers, such as Colt, Ruger, and Mossberg, ship 30 round magazines as standard with their rifles. New production magazines from manufacturers like Magpul, and importers of surplus magazines add to the number annually.

Semi-automatic rifles that utilize detachable box magazines with a standard capacity of 30 rounds have been “overwhelmingly chosen by the American people” for lawful purposes including home and self-defense and hunting. That, according to Heller (pp.55-56) qualifies them as “in common use”, and “as we have explained, that the sorts of weapons protected were those “in common use at the time” (p.55). Therefore laws that restrict their use violate the protections under the Second Amendment. In McDonald, the Court made clear that the 14th Amendment ensures Second Amendment rights cannot be infringed upon by individual states, and the Court struck down Illinois’ unconstitutional gun law. The same must be applied to every state that currently violates the Second Amendment’s protections by restricting magazine capacity.

 

This article was originally published on Brenner Brief. Original publish date Nov 1, 2013. Original author, Matt MacBradaigh.

Proposed Assault Weapons Ban would violate the Constitution

Proposed Assault Weapons Ban would violate the Constitution

Feinstein stated on CNN’s Pier’s Morgan Tonight that, “There’s no Second Amendment right to bear every type of weapon that you know of. These [assault weapons] are a certain class of weapons … I don’t believe the Second Amendment covers them.”

Sen. Feinstein is wrong.

She says she believes the Second Amendment wouldn’t protect the right of American’s to keep so-called “assault weapons,” however, Feinstein’s bill would face serious constitutional challenge.

The government is empowered to restrict and regulate “dangerous and unusual weapons,” like fully automatic machine guns and bazooka’s (which it has since the 1934 National Firearms Act), but not weapons “in common use at the time.” This would include so-called “assault rifles.

What the Second Amendment Says:
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.”

Supreme Court Justice Scalia, writing the majority opinion in the landmark case, D.C. vs. Heller, goes into great detail about the historical precedent, legal history leading up to the writing of the Second Amendment (as well as providing legal comparison’s in the early state’s constitution’s, early American law and law pre- & post-Civil War), and the historical context for the words used in the Second Amendment. Let’s examine his review:

Individual Right
The Second Amendment is a personal right. Justice Scalia notes, “Nowhere else in the Constitution does a ‘right’ attributed to “the people” refer to anything other than an individual right” (p.6) . He further says that it is a natural right to self-defense that is “clearly an individual right,having nothing whatever to do with service in a militia” (p.20).

Dangerous and Unusual Weapons can be Limited
The Court states that the Second Amendment is not unlimited: “Like most rights, the right secured by the Second Amendment is not unlimited … the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” (p.54).

Notably, the Court states that “dangerous and unusual weapons” may be lawfully limited, “the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” (p.55). The key word is “unusual;” all weapons are inherently dangerous. Weapons that are unusually dangerous are lawful to limit under the Second Amendment. This is why we can’t all own rocket launchers. However, there is more to it than just being unusual.

Common use at the time is protected
Weapons that are in “common use at the time” are protected under the Second Amendment: “The sorts of weapons protected were those “in common use at the time” (p.55). Scalia also states that “modern developments … cannot change our interpretation of the right” (p.56). This also precludes the sometimes proposed argument that only muskets and single-shot pistols are protected by the Second Amendment; Scalia addresses this directly, calling the suggestion “frivolous,” noting other rights are not interpreted in this manner and stating “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” (p.8).

Popularity and prevalence of use is relevant
The Supreme Court also cites prevalence and popularity as relevant factors, specifically as they relate to handguns, “Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid” (p.57-58). Also noting that an entire class of arms may not be banned, “The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose” (p.56).

They preempted argument that as long as other classes of arms are not banned, the ban of one class is permissible, “It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed” (p.57). It is clear from the Court’s remarks, that it is not permissible to ban an entire class of weapons that are popular and in common in use at the time.

Why is this relevant? Because semi-automatic rifles have been on the U.S. commercial market since 1903 (from Winchester and Remington) and are in broad use among law-abiding citizens for self-defense, target shooting, and sport. They accounted for about 40% of rifle sales in 2010. The AR-15 is the most popular model in America – accounting for 5.5% of all U.S. guns manufactured in 2007 alone. There are millions in circulation. It has been popular since it was created in 1958. The semi-automatic civilian versions of AK-47’s have been popular for decades (Kalashnikov invented the rifle in 1947). FN FAL’s have been around since the 1950’s. Semi-automatic, so-called “assault rifles” are a very popular class of rifle. There are literally millions of them in the various proposed ban of more than 150 named models (AR-15, AK-47, Mini-14, FN FAL, HK-91, AR-10, etc.)

Therefore the Feinstein ban would be unconstitutional. The Second Amendment protects popular classes of arms that are in common use at the time. So-called “assault rifles” fit that description. The fact that gun violence is a problem doesn’t justify violating the Constitution. The Court ruled “we are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many … who believe that prohibition of handgun ownership is a solution … But the enshrinement of constitutional rights necessarily takes certain policy choices off the table” (p.64, emphasis added). Feinstein doesn’t think that her proposed ban would be unconstitutional. As Justice Scalia has explained in great detail, the Supreme Court rationale in the D.C. vs Heller case shows that she’s wrong.

 

This article was originally published on PolicyMic.com, now Mic.com. Original publish date Feb 11, 2013. Original author, Matt MacBradaigh.

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