Thursday, October 22, 2015
Dave Workman: 2nd Circuit Ruling
Yesterday’s ruling by the Second U.S. Circuit Court of Appeals upholding most of the gun control laws passed in New York and Connecticut after the Newtown tragedy may not be getting the rave reviews one might expect because of a couple of key tenets of Circuit Judge Jose A. Cabranes’ decision.
“This much is clear,” Judge Cabranes wrote, “Americans own millions of the firearms that the challenged legislation prohibits.
“The same is true of large‐capacity magazines, as defined by the New York and Connecticut statutes,” he continued on page 24 of the ruling. “Though fewer statistics are available for magazines, those statistics suggest that about 25 million large‐capacity magazines were available in 1995, shortly after the federal assault weapons ban was enacted, and nearly 50 million such magazines—or nearly two large‐capacity magazines for each gun capable of accepting one—were approved for import by 2000.
“Even accepting the most conservative estimates cited by the parties and by amici,” he observed, “the assault weapons and large‐capacity magazines at issue are ‘in common use’ as that term was used in Heller.”
“Common use” is a term used in the 2008 Heller ruling by the U.S. Supreme Court that cemented the role of the handgun in self-defense, not to mention its protection under the Second Amendment. It’s an observation from the judge that may seem like a bread crumb right now, but it could have the weight of a wrecking ball somewhere over the legal horizon.
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Of course it will be overturned on 'in common use' but that isn't a good thing as some think it is. Why? Well, because then no new technology could be protected. How can it be "in common use" when it is newly discovered technology? That doesn't hold with the court's own structure that technology advancement itself does not limit exercise of a right - as in ink pens not protected but quills and inkwells are.
Currently, arms useful in the military context are exactly what is protected. The attitude here is to cement "in common use" as a replacement for "useful in the military context".
We are being bait and witched.
For many years, the "militia" argument was used. You know, the "right to serve in the militia"...and as such only when in the militia could you access certain arms. This of course was the pretext to ban short barreled shotguns as "not useful" in that military context.
I say enough is enough. They don't get to move the goal posts now that a hammer they hit us with no longer hammers us but instead hammers them. We should not be tricked into accepting the "in common use" line in the sand. If we do, we lose and lose badly long term.
Think about it, select fires are already "not in common use" because prohibitions made it that way. Suppressors as well.
I agree in limited context "in common use" is a wreckingball. I even agree it wil demolish this pitiful 2nd circuit decision - what I point out is that it is meant to be that way ! Meant to be that way to establish "new" scope, a "new" scope that eliminates ground we have already gained but that the Supreme Court has not yet had to face and admit.
"in common use" should go the way of the do do bird, just as "within the home" did. It holds the same merit, as a pathetic attempt at judicially denying the simplest of actualities.
I point to "free standing interest balancing approach" as a much better hill to climb, or rather roll down. Likewise, that a right's enumeration necessarily removes certain policy choices from the table of debate has tremendous authority here as well.
Possession is a right. That makes bans on possession unable to pass muster, no matter what class of arm it is. Use in defense of self kin and property, including country, is a right. This makes defensive uses outside the ability to pass muster.
Tht leaves abuses, which include robbery, rape, murder, property damage, intimidation, brandishing with malicious intent, and this of this nature, plenty and perfectly open for regulation and prohibition. Nobody argue that those uses are part of the right we retain. Those uses - which are totally disconnected from possession itself - are absolutely abuses and easily demonstrated to be abuses. Nobody's rights are violated, infringed or abridged in prohibiting and punishing those abuses.
It seems to me that THIS is the track we should be arguing, rather than taking their "in common use" bait and switch. Arms useful in the military context, in the organized militia setting,are exactly what the Second Amendment aimed to protect. It is the standard we should fight to keep, not let be replaced in a roundabout attempt to sneak through more gun control. 3-d printing is a great tangible example. Let's not let them ban it before it is impossible to create "common use".
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