|Supreme Court Precedent May Guide Judges in New Gun Lawsuit|
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Supreme Court Precedent May Guide Judges in New Gun Lawsuit :: Fox&Hounds
By Scott Lay
Publisher of The Nooner
Wednesday, July 3rd, 2019
In the Los Angeles Times, Patrick McGreevy reports that gun rights groups have filed suit in the Southern District of California to challenge California’s law barring the sale of long guns to persons under age 21. Last year, the Legislature expanded the existing ban of the sale of handguns to persons under 21 to also include rifles and shotguns in SB 1100(Portantino). Here is the legal filing.
“Once individuals turn eighteen, they are adults in the eyes of the law,” said John W. Dillon, the Carlsbad attorney representing the gun groups. “Law-abiding adults are entitled to fully exercise all of their fundamental rights, including their Second Amendment right to keep and bear arms for all lawful purposes, not just hunting or sport.”
As someone who grew up hunting under my dad’s supervision and with his guns, I’m fine with the law. But as you know, I’m a legal geek first, and the legal argument could make it to the Supreme Court of the United States (SCOTUS). It’s a textbook test of the expansiveness of SCOTUS in District of Columbia v. Heller, 554 U.S. 570 (2008). In that case, the high Court held that there was an individual right to bear arms under the Second Amendment and thus invalidated DC’s ordinance banning handguns and requiring long guns to be unloaded and disassembled.
However, the Court also held that within that individual right, reasonable regulation in the interest of public safety met constitutional muster. In the ruling, it upheld the DC Circuit holding that there is an individual right as it pertains to keeping a functional gun in the home for the purposes of self-defense.
The issue of the individual right of possession outside of the home is not present in the SB 1100 case, but rather the definition of “individual.”
The plaintiffs in the California case against the SB 1100 21-year-old requirement is beyond reasonable regulation and violates the rights of “adults” between the ages of 18 and 20.
The ordinary definition of the militia “[i]s all able-bodied men.” Heller, 554 U.S. at 707 (Breyer, J. dissenting). The Supreme Court in Heller recognized that through Congress’ plenary power, it organized all able-bodied men between 18 and 45 as part of the militia in the first Militia Act. Heller, 554 U.S. at 596. Thus, the Supreme Court recognized 18-to-20-year-olds as part of the militia; and as such, they necessarily have the right to keep and bear arms. Further, as affirmed in Heller, the right to keep and bear arms extends beyond the militia, reserving an individual right to keep and bear arms for all lawful purposes, “most notably for self-defense within the home.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010).
Again, I grew up with guns and am content with SB 1100. But based on the definition of “militia” in Heller and McDonald, the plaintiffs in the SB 1100 have a good argument. If you determine that the militia is defined as those eligible to serve in the military, and even more so those required to register with the government therefore, then at minimum men over the age 18 fit into those constitutionally allowed to own guns, reasonably regulated under Supreme Court precedent. Now, Heller was authored by Justice Scalia in a 5-4 decision joined by C.J. Roberts and Justices Kennedy, Thomas, and Alito. Justice Stevens authored the dissent, joined by Justices Souter, Ginsburg, and Breyer.
I may not like the opinion. I honestly don’t know what the authors of the Second Amendment meant with this wording:
“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.”
Believe it or not, I spend a lot of my time editing my own words. Later I read it again after its too late and think, “Damn, that comma was in the wrong place.” Commas and needless clauses can completely confuse a reader.
Last night, I picked Yale Law professor Akhil Amar’s great book “The Bill of Rights” off my bookshelf and read the chapter that covers the Second Amendment. Notably, the discussion is found in chapter three entitled “The Military Amendments.” Those include the Second Amendment and the Third Amendment, one which we never talk about and provides:
“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
If you consider them together, the meaning of the Second Amendment changes as you interpret it in the 1789 context.
Back to editing of the Second Amendment, the absolutists would drop everything up to “free State,” and strike the comma that follows “Arms.” The Heller and McDonald decisions essentially provides for that with the addition of “within reasonable regulation” added following “shall not be infringed.” Absolutists would strike the regulation clause completely, although that creates problems with the allowance for severely mentally ill persons to possess guns, and I’m guessing most agree that John Hinckley who shot Ronald Reagan should not possess guns, even if he is living peacefully out of a criminal institution now.
The critics of Heller and McDonald and, if overturned by the federal courts, SB 1100 advocates would either strike the Second Amendment and leave it to the plenary powers of Congress or rewrite it and I don’t have any suggestions where the “in between” language makes clear sense and my Nooner clock for today is running out.
Meanwhile, the SB 1100 case will start in the San Diego federal court. Either side (Attorney General Xavier Becerra in his official capacity is the named defendant) will appeal it to the Ninth Circuit. If the Ninth Circuit upholds SB 1100, I fully expect the gun rights plaintiffs to appeal it to the Supreme Court of the United States. I don’t know what Becerra would do if the state loses at that point.
While Justices Scalia, Stevens, Kennedy, and Souter are no longer on the Court, the overall dynamics if anything are more conservative after Brett Kavanaugh replaced Anthony Kennedy. Therefore, it comes down to the definition of those eligible for a “well regulated militia,” and as long as we have a mandatory registration for the draft of men over the age of 18, California has a tough argument to make.
Again, this is an analysis based on legal precedent that I’ve been in deep with since yesterday’s filing. It is not reflective of my personal opinion. As always, I welcome feedback, but please keep it on a legal basis rather than political or emotional. I express my personal opinion on issues like whether food should be allowed to be cooked at home for sale, but I think that for those who pay, they are looking more for analysis as that in the above paragraphs, even when they like me may not agree with the result.
“Damn, that comma was in the wrong place.” Commas and needless clauses can completely confuse a reader.
Indeed. In point of fact, the Second Amendment as ratified by the several states and posted by Secretary of State Thomas Jefferson had ONLY ONE COMMA.
From the Library of Congress:
The mischief created by the addition of two superfluous commas is considerable. They in effect create four clauses, and pose the first and third as congruous, and the second and fourth as congruous as well, i.e. "A well-regulated militia" = "the right of the people to keep and bear arms", and "being necessary to the security of a free State" = "shall not be infringed".
Which is poppycock.
Nobody seems to know how they got there, but it is certain that they did not exist when the amendment was ratified. It is also obvious that they were created from whole cloth precisely to achieve the interpretation mentioned supra.
Justice Scalia correctly referred to the sentence as having only two clauses separated by a comma. If one wishes to understand what truly was enshrined in the sentence, one must remove the first and third commas.
LIBERTY HAS NO EXPIRATION DATEDemocrats wouldn't buy a clue if it was government subsidized.
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