Gun Control Advocate Misrepresents Massachusetts Court Decision on Common Rifles

In an interview in Mother Jones, a leading gun control advocate, Avery Gardner, makes the following claims. From motherjones.com:

AG: There’s a case in Massachusetts that raises this exact issue. Worman v. Baker was decided in April by Judge William Young. It’s a 47-page opinion that really goes into this question of “in common use at the time” and said that’s the standard. Judge Young quotes Scalia’s opinion in Heller all the way through it and then upholds the Massachusetts law banning assault weapons. That case is going to be appealed to the First Circuit Court of Appeals. The Second, Fourth, Seventh, and the DC Circuit have all upheld assault weapons ban, so I predict the First Circuit will, too, but somebody’s going to appeal that to the Supreme Court, and we will have this discussion about what does “in common use at the time” mean? I think it’s likely that Judge Kavanaugh will be Justice Kavanaugh by then. And we know what he thinks because he already told us—he wrote that dissent in the DC case.

Avery Gardner (AG) misstates what Judge William Young writes in his opinion. In Worman v. Baker, Judge Young does not rely on the "in common use at the time" argument. He instead makes the claim that AR15 rifles are "most useful in military service", and therefore are not covered by the second Amendment.

That claim turns the 1939 Miller decision on its head. He bases his claim on Justice's Scalia's words that the Heller decision does not invalidate the federal regulation of full auto firearms such as machine guns.

Judge Young pointedly rejects the "in common use" argument, stating that because AR15 type rifles have military purposes, they fall completely outside the scope of the Second Amendment, whether they are in common use or not. He rejects the Caetano decision from the Supreme Court, in favor of other appellate decisions the Supreme Court refused to hear.

The Heller decision is clear. The weapons protected are those in common use. From U.S. v. Heller:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , 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.

The "common use at the time" phrase used by Justice Scalia refers to the time the Miller decision was written, in 1939, not to the time the amendment was passed, in 1791. Avery Gardiner either mis-read the rather plain English in Justice Scalia's opinion, or is misrepresenting it.

In the Caetano decision by the Supreme Court in 2016, the Court unanimously upheld that the Second Amendment applies to all bearable arms, "even those that were not in existence at the time of the founding".

The Supreme Court has rejected the theory that the Second Amendment only applies to those arms in common use in 1791.

The theory that the Second Amendment does not apply to arms that are militarily useful is not the only error in Judge Young's decision.

Judge Young starts his decision by claiming the Second Amendment was not considered an individual right until recently.  From Worman v. Baker:

For most of our history, mainstream scholarship considered the Second Amendment as nothing more than a guarantee that the several states can maintain "well regulated" militias.

The idea that the Second Amendment only applies to "well regulated" militias is known as the "collective right theory". Judge Young's claim is in direct contradiction to the majority opinion written by Justice Scalia in Heller.  From Heller:

It is demonstrably not true that, as Justice Stevens claims, post, at 41–42,“for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.” For most of our history the question did not present itself.

Judge Young only quotes select sources from 1966, 1978, and 1971 to support his collective right claim. But historical sources show the judge is mistaken.  The collective right theory had almost no adherents until the Kansas Supreme Court adopted it in 1905. But the Kansas Supreme Court decision only applied to the Kansas State Constitution's right to bear arms.

The collective right theory, applied to the Second Amendment, started to become part of Progressive ideology after the Kansas Supreme Court decision.

It became popular after 1939 with mis-interpretation of the Miller decision. The veracity of the theory was not supported by academic research. It was merely assumed. The theory started being attacked in law review articles in 1983.

Critique of the collective right theory went mainstream when famed constitutional scholar Sanford Levinson penned his article "The Embarrassing Second Amendment".

The collective right theory was mainstream from after 1939 to 1983, for 44 years, unsupported by academic research. For most of the history of the Second Amendment, from 1791 to 2018,  the mainstream opinion has been that the Second Amendment protected an individual right.

Williams' poorly argued decision was published on 5 April, 2018, before Justice Kennedy decided to retire. The Supreme Court had been unwilling to hear Second Amendment cases since 2011, outside of Caetano. Judge Williams might have presumed the Court would refuse to hear his case. He may have thought the First Circuit would also ignore Caetano.

Caetano applied directly to Massachusetts. There is a chance the First Circuit will follow the Caetano decision and reverse Judge Young's ruling. As Avery Gardner notes, there is an excellent chance Judge Kavanagh will be seated on the Supreme Court as Justice Kavanagh by that time.

Judge Kavanagh has already written that semi-automatic rifles are protected by the Second Amendment. 

If Worman v. Baker is appealed to the Supreme Court, there is an excellent chance the court will restore more Second Amendment rights. The existing infringements on the right to keep and bear semi-automatic rifles are fairly new, enacted in the last 25 years in a handful of states.

©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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