Guns

18-to-20-Year-Olds and the Second Amendment: Challenge to Florida Law Can Continue

So holds a federal district court.

|The Volokh Conspiracy |

From Judge Mark E. Walker's opinion in Friday's decision in NRA v. Swearingen (N.D. Fla.):

The crux of Plaintiffs' Second Amendment Claims is that section 790.065(13) completely bars 18-to-20-yearolds from acquiring a firearm by purchase and therefore impermissibly infringes on their Second Amendment rights. This Court concludes that Plaintiffs have plausibly alleged that section 790.065(13) is unconstitutional either on its face or as-applied to Plaintiffs….

It is important to keep in mind the narrow issue before the Court at this stage of the proceedings. This Court is not asked to, and does not, decide whether section 790.065(13) is constitutional. Rather, the question is whether Plaintiffs' Complaint contains "enough facts to state a claim to relief that is plausible on its face." At this early stage of the proceedings, Plaintiffs "ha[ve] plausibly pled enough in [their] [C]omplaint to get into the courthouse and be heard."

For opinions on the much less restrictive federal gun law (which let 18-to-20-year-olds buy long guns, and which let them even buy handguns from sellers who weren't professional gun dealers), see this Fifth Circuit panel decision (NRA v. BATF) upholding the federal ban on handgun sales by federal firearms licensees to 18-to-20-year-olds, and a dissent from denial of rehearing en banc disagreeing with the panel; and see also this post from David Kopel pointing to other decisions.

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  1. I really don’t see how allowing somebody to buy something only from private sellers, and not from businesses, can possibly pass even genuine rational basis analysis. (Not that “rational” basis actually has anything to do with rationality.)

    Most of these laws originated during a time when the federal judiciary were committed to pretending that gun ownership was just a privilege, not a right. A LOT of ‘settled law’ really ought to have been revisited and overturned after Heller. The Lautenberg amendment, for instance, makes no sense as a way to treat a RIGHT. It only made the slightest sense if you were treating gun ownership as a disfavored privilege.

    1. That’s also true for the entirety of the NFA, the Hughes Amendment, the interstate handgun ban, 922(g)(1) as applied to non-violent felonies and felonies from long ago, the USPS prohibition on individuals shipping handguns, the complete prohibition of guns on federal property, and nearly every other. Most of them don’t even pass rational basis scrutiny, much less the strict scrutiny that should be applied to Constitutional rights.

      Also, even if strict scrutiny is to be used by the courts at a later date, governments should not be able to automatically satisfy the “compelling state interest” prong by stating that guns are dangerous. Of course they’re dangerous; that’s the whole point!

    2. Is dynamite “arms” within the meaning of the Second Amendment? There are all kinds of regulations detailing not just from whom you can buy it, but to whom it can be sold, and for what purpose. Yet, under the absolutist Second Amendment analysis, in which anything that could be used either for self defense or for protection against big bad government is protected, I don’t see how those regulations are constitutional either.

      And that, I think, identifies the specific bone of contention. Those of us who are *not* Second Amendment absolutists live in the real world and understand that there are real world consequences to the claim that nobody can do anything about gun violence; it’s a problem we just have to live with (or die with) because, you know, Second Amendment.

      I’m not arguing for or against this specific regulation or law. Merely pointing out that the rationale behind it, and other regulations, is not entirely off the wall if you think that reducing violent death is a legitimate state interest. As I do.

      1. Don’t you people ever tire of this asinine argument? Read the Federalist Papers and other historical background regarding the thoughts of the founders. “Arms” clearly referred to small arms that could be carried (hence, the “bear”) and would be commonly used by infantry and kept at home for when the militia was needed.

        The argument that goes like “Well, ‘arms’ could include nuclear weapons, so if we agree that you can’t own nukes, then it’s reasonable to say you can’t own guns either” is really getting old.

        1. Who is “you people” exactly? And I didn’t say a word about banning guns. For that matter, the number of people who actually support a ban on guns is teeny-tiny; you’ll find a few but not many. Most of “us people” would be happy with regulations designed to make it harder to shoot up a school or a shopping mall.

          That said, “we people” are just as weary of hearing that the right to keep and bear arms means an unregulated right or an absolute right. That’s not in the text either.

          1. “You people” are leftists who lie. Stop saying it’s a teeny-tiny number; about half the Democrats support a complete ban on guns, so it’s about 1/4 of the country. Not a “teeny-tiny” number. Second, as long as guns are generally available, you won’t be able to easily “make it harder” to shoot up a school or shopping mall. The only way to create this fantasy world of yours is to ban all guns and institute the police state needed to keep it that way.

            1. OK, what you just said is so ridiculous I’m not even going to bother responding. Have a nice day.

              1. Okay, riddle me this – you support restrictions on the ENUMERATED right to keep and bear arms, but I’m guessing you oppose anything making the penumbral right to vote more cumbersome. Am I right? If so, how do you rationalize this apparent contradiction?

        2. For what it’s worth, in their search for “arms”, the British found and destroyed 3(?) cannon at Concord back in 1775.

      2. Brett’s right about “no dealers only private sellers” failing rational basis. That just makes no sense.

        1. It’s something that I also just don’t get. If you are in favor of additional restrictions on gun ownership, then I would think you would want a system where you can *only* buy from dealers (ie, no private sales). After all, if it’s a dealer purchase, then there is a nice clean record of the sale, which is important and useful for law enforcement purposes in terms of investigating gun-related crimes.

          So, it seems exactly backwards.

          1. Most 2nd Amendment advocates, I think, and many advocates of freedom from potential tyrannical governments, oppose just such a “nice, clean record of the sale,” as that will be the database used to facilitate confiscation ‘when the time comes.’ Firearms transaction records are de-facto registration.

            “…one of the first things that Hitler did when he seized power was to impose strict gun registration requirements that enabled him to identify gun owners and then to confiscate all guns, effectively disarming his opponents and paving the way for the genocide of the Jewish population.”

            https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4029&context=flr

            1. That’s exactly why I use many different FFLs. All of my 4473s are scattered around, not in one easy to find place.

      3. “Is dynamite “arms” within the meaning of the Second Amendment?”

        Not as such, no. It’s not an arm(weapon) any more than a hammer or a base-ball bat would be.

        “the claim that nobody can do anything about gun violence; it’s a problem we just have to live with (or die with) because, you know, Second Amendment.”

        There is no such claim. You could seek to repeal the second amendment rather then trying to redefine it into being a nullity.

        1. I’m not trying to redefine it into being a nullity. If tomorrow I woke up as supreme dictator, my gun control laws would be background checks, waiting periods, no gun sales to people with a documented history of violence or mental illness, bans on large magazines, and bans on armor piercing ammunition. I might think of one or two others, but that’s about it.

          That would impact maybe 10% of gun owners and gun sales, if that. All of your handguns, hunting rifles and sport rifles would remain completely unaffected.

          Now, that may be more gun control than you’re comfortable with, but by no reasonable definition does it turn the Second Amendment into a nullity, and it certainly doesn’t make me into a gun banner. Unless you take the position that any regulation at all violates the Second Amendment, in which case we just disagree.

          1. And then the next week, when none of that did anything, you’d come back for the next bite.

            1. What makes you so sure none of that would do anything?

              And even if it didn’t, my position is that the rights of gun owners and the rights of society need to be balanced, which is not quite the same thing as saying that guns can or should be banned. At some point, if your prediction is accurate and nothing does work, the scale has still tilted as far away from gun owners as the Second Amendment allows and we have no choice but to stop tilting. Remember, I’m the balance and nuance guy, you’re the black-and-white, either-or, if it ain’t Christmas it must be the Fourth of July guy.

              1. Actually Heller is very responsible judicial activism. So Heller is limited to guns in the home for self defense. Now I actually agree with Stevens’ interpretation of the 2A but I also believe the outcome of Heller is correct. So how can we have a right to privacy if we can’t keep guns in our homes for self defense?? Guns are as American as apple pie but we have a strong tradition of regulating guns outside the home and of regulating certain types of guns like handguns and machine guns. Btw, when was the last time a machine gun was used in a crime? That would seem to be evidence that gun regulations work!

                1. “Btw, when was the last time a machine gun was used in a crime? That would seem to be evidence that gun regulations work!”

                  Weren’t being used a lot in crime before the regulations, either.

                  1. You are truly a dumbass. The Thompson submachine gun existed you imbecile.

                    1. Who said it didn’t “exist”? I said it wasn’t being used a lot in crime.

                      Sure, there were cases that got a lot of press. That’s not the same as being used a lot. What percentage of shootings were using machine guns?

                    2. Whatever nitwit. You didn’t even know the Thompson submachine gun existed. The notion John Dillinger would have preferred to use a semi automatic but for some reason couldn’t get his hands on one is beyond absurd. Once again, you are an imbecile.

                    3. “The notion John Dillinger would have preferred to use a semi automatic but for some reason couldn’t get his hands on one is beyond absurd.”

                      What one particular infamous criminal would or would not have preferred isn’t relevant and doesn’t counter the argument that even before the NFA was passed few crimes were committed using automatic weapons.

                    4. What imbecile told you nitwits about criminals preferring semi automatic weapons?? Criminals generally choose the cheapest weapon that gets the job done…most aren’t wealthy. But if the NFA wasn’t passed Tommy guns would be cheap and accessible in America and so obviously criminals that could afford them would use them if they made sense in the criminal activity they were engaged in. Seriously, you people need to use your brains and try to think for yourself.

                    5. Where the hell did you get the idea that I didn’t know about Thompson machine guns? Because I didn’t think machine gun crime was particularly common? (Which is not the same as non-existent.)

                      No, you just automatically assume anyone who disagrees with you is an ignorant idiot.

                    6. You are either an ignoramus or an imbecile.

                  2. I don’t think that’s quite the point. So far as I know, there has only been one crime in all of human history in which airplanes were hijacked and flown into buildings. But the issue isn’t so much its rarity, as its destructiveness (both tangible and psychological) on those rare occasions when it does happen.

                    1. Great point. Automatic guns were only in existence AND legal for a little over a decade and every American knows how much carnage they inflicted. Hey let’s outlaw booze while introducing this new technology that can kill hundreds of people very easily!! What could go wrong??

                    2. Nobody who has ever fired a machine gun thinks they’re more deadly than semi-autos. You need to stop getting your knowledge from 30s era gangster movies.

                    3. There are many cases of people intentionally flying airplanes into buildings, you just have to look.

                2. Sebastian Cremmington, here’s your logic:

                  1. In America handguns and machine guns are regulated;
                  2. machine guns are seldom used in crimes;
                  3. handguns are the most common guns used in crimes;
                  4. see, regulation works!

                  1. Handguns have always been easy to purchase. Machine guns are apparently very difficult to purchase.

              2. “What makes you so sure none of that would do anything?”

                California.

                1. Um, no. It’s too easy to smuggle guns into California from any of a half dozen Western states with fewer restrictions. That’s why gun control only works at the national level.

                  Hawaii has had some success with gun control precisely because it’s not as easy to import them. You can’t just fill your car trunk with unregulated Arizona guns and drive them across the state line.

                  1. I think that is why NYC had such great success with using gun control to reduce crime under Giuliani. So NYC has bottlenecks that make smuggling guns into the city difficult. So Newark didn’t see nearly the drop in crime during those years as NYC saw.

                  2. And fortunately, the U.S. borders are impermeable to contraband.

                    And if you can’t smuggle them in, you’re just hard out of luck.

                    On a more serious note, your prescriptions were:

                    1)background checks – as you know, criminals usually acquire their guns not from legit sellers who don’t realize they are dealing with a crook, but from fellow criminals who will treat your background check with the same seriousness they treat selling drugs w/o a prescription.
                    2)waiting periods: this will … temporarily delay impatient crooks? What’s your estimate of the reduction in the annual number of murders, based on the existing ‘time to crime’ numbers for murder weapons?
                    3)no gun sales to people with a documented history of violence or mental illness: that’s the law today
                    4)bans on large magazines: I actually don’t object to this – because anyone with minimal familiarity can reload fast enough to defend themselves, or commit mass murder. Give me 20 minutes of your time at the range and you can too. So the effect will be minimal at best. Sadly, you don’t need a big magazine (or a pistol grip or …) to massacre a class of 2nd graders.

                    And it will have zero effect on normal crimes; the median number of shots per murder is in the low single digits, and the median number of shots per mugging rounds to zero.
                    5)bans on armor piercing ammunition: out of curiosity, how much of a decline in the murder rate do you expect to see from that?
                    (and ‘armor piercing’ handgun bullets are already banned – they have been banned since before they really existed, in fact. There isn’t a corresponding ban on rifle ammunition, because rifle ammunition – all of it – inherently pierces normal police body armor, which is the kind of armor under discussion. There are tiny quantities of WWII error actual AP ammo around in 30’06 which is true AP, as in light WWII era armored cars and such. But its use by criminals is (virtually?) nonexistent).

                    I would suggest some alternatives:
                    1)Actually lock up violent criminals. It’s commonplace to see some local crook finally make the front page for a murder, at age 26, with 19 prior felonies as an adult. There are, you might say, some missed opportunities there. Similarly, stop plea bargaining away felon-in-possession cases. It probably won’t greatly deter felons from acquiring guns, because felons just don’t think that way, but it does send away the self selected most serious crooks.
                    2)End some of the gun free zones, like Post Offices, so CCW holders aren’t leaving guns in cars to be stolen. Mount PR campaigns against leaving guns in cars.
                    3)Similarly, encourage secure storage at home. Let people deduct gun safes from their taxes or something. Start requiring some kind of safe in rentals, like we do smoke alarms.
                    4)Teach gun safety in schools. Want to glamorize guns? Make them a required subject.
                    5)If you want background checks, you can have them without objection from gun owners. Have a G-for-guns endorsement added to driver’s licenses, and require anyone selling or loaning a gun to check for the endorsement. The objections will vanish, and everyone who is willing to travel to an FFL and pay $50 will comply (crooks will still ignore the law, because … crooks).

                    1. Oooops, ‘glamorize’ should be ‘deglamorize’.

                    2. You seem to be arguing that unless a law provides a perfect solution 100% of the time, we shouldn’t have it. But that’s not the standard. The standard is whether a law leaves us better off than we were before. What I’ve proposed would not eliminate gun violence altogether — probably nothing short of having magical powers would actually do that — but it will reduce them, and leave us better off than we were before.

                      The other important purpose that gun control laws serve is that they shift the cost to criminals. As it stands now, if I’m a gang member in Chicago, it’s relatively low cost/low risk to me to obtain the weapons that I use to terrorize my community. Under what I have proposed, it becomes more expensive for me to obtain those weapons, and that’s a good thing. Because what I’ve proposed would be enacted at the national level, I can no longer drive up to Wisconsin to buy unregulated guns. The means by which I obtain those guns carries a risk, both for me and the guy who transports and sells them to me, of a lengthy prison term. I may still succeed in getting one, but it’s going to be a whole lot more expensive and risky for me to do so. And that’s a good thing.

                      In fact, even if you could prove that my proposals would not prevent a single murder, I would say that the mere fact that they make crime more expensive and risky for criminals would make them worth it all by itself.

                      Of course, the interests of non-criminal gun owners need to be taken into account too, but I don’t see that anything I’ve proposed makes life all that more onerous for the law abiding. You’re right that a magazine can be quickly reloaded, but face facts; Anyone who needs to fire off 100 rounds is probably up to no good. All you’re doing by making it easy to fire off 100 rounds is arming school shooters and urban gangsters. I know, some people find it a thrill to fire off 100 rounds for sport, and I could probably be talked into allowing special gun ranges for that purpose with strict regulation: The magazines stay at the range under lock and key when they’re not being used under supervision.

                      Finally, you misunderstand the purpose of waiting periods. People sometimes do things in the heat of passion that they would not do if they had time to cool down. Making someone wait 24 hours to buy a gun means that some crimes will not be committed because people will have cooled down in the meantime. Is that a big percentage of murders? Probably not, but every bit helps, and 24 hours does not strike me as unduly burdensome. I would not make the waiting period any longer than that, however.

                    3. Except you don’t have a shred of evidence that any of your “solutions” will help at all, much less substantially.

                    4. “You seem to be arguing that unless a law provides a perfect solution 100% of the time, we shouldn’t have it.”

                      I rather explicitly said otherwise.

                      “What I’ve proposed would not eliminate gun violence altogether — probably nothing short of having magical powers would actually do that — but it will reduce them, and leave us better off than we were before.”

                      By how much? Show your work. We always hear great things about gun control proposals, but when you look for the benefits afterwards, they seem hard to find. We don’t just take it on faith when Big Pharms says some drug is a magic cure; we make them show it works.

                      “The other important purpose that gun control laws serve is that they shift the cost to criminals.”

                      Not when gun charges are routinely plea bargained away. Again, less theory, more documented results.

                      “The means by which I obtain those guns carries a risk, both for me and the guy who transports and sells them to me, of a lengthy prison term. ”

                      What percentage of people who lie on a 4473 are prosecuted? Hint: almost none. Laws that aren’t enforced against those who break them aren’t imposing a risk.

                      “In fact, even if you could prove that my proposals would not prevent a single murder, I would say that the mere fact that they make crime more expensive and risky for criminals would make them worth it all by itself.”

                      I dunno. Our 26 year old guy with 19 felony convictions doesn’t really seem to much at risk from the law, does he?

                      “People sometimes do things in the heat of passion that they would not do if they had time to cool down. Making someone wait 24 hours to buy a gun means that some crimes will not be committed because people will have cooled down in the meantime. Is that a big percentage of murders? Probably not, but every bit helps,…”

                      Having a speed limit of 50 MPH on the interstate would save lives. A big percentage? Perhaps not, but every bit helps,…

                      Or, alternatively, having extensive voter ID won’t reduce voter fraud much, but every bit helps, right?

                      And, again, can we agree that a waiting period of N days can only affect crimes/suicides that happens within N days of the purchase, right? How often is the time-to-crime less than N days? Hint: the typical time-to-crime is measured in years. And also to repeat, if I already own a gun, or can borrow one, how does that waiting period prevent my crime or suicide? Use your political capital on something that will actually provide a benefit.

                      By crafting proposals that – to knowledgeable gun owners – appear to be more by animus than crime fighting, you lose the support of gun owners – duh. And there are enough gun owners that their votes matter. If gun control proponents were less blithe about ‘doesn’t seem too onerous to me’, you might be able to enact some of what you want. Your choice.

                    5. Of course they don’t seem onerous to them, as they don’t plan on exercising the right anyway.

                    6. OK, first of all, I’m calling BS on two of your comments. In response to my statement that you seem to be arguing only for laws that are 100% effective, you said that you “rather explicitly” argued otherwise. But here’s what you actually said:

                      If you can imagine some perfect gun control that makes it 100% impossible for crooks to acquire or misuse guns, with zero impact on the law abiding then you will find that 99.947% of NRA members enthusiastically support such laws. NRA members don’t like to be crime victims any more than you do.”

                      Second, you said “If gun control proponents were less blithe about ‘doesn’t seem too onerous to me’, you might be able to enact some of what you want. Your choice.”

                      Did you miss Aktenberg78’s response to my very first comment in this thread? People who support regulation are lying leftists who want to ban all guns. There’s no reasoning with that; his position (and that of many other anti-regulation extremists) is rage-driven, not reason-driven. So it really doesn’t matter how blithe I or anyone else may be; they are going to find any regulation that impacts gun ownership intolerable, and a commie plot for big bad gummint to take away all our guns. So I don’t bother adjusting my rhetoric for his benefit; it would be an exercise in futility.

                      On the issue of whether my proposed regulations would work — you want to see my homework — is there any evidence that laws against murder work? Murder is illegal in all 50 states but there are still thousands of murders every year. If someone is going to commit a murder, they’re going to do it whether it’s illegal or not, so by your reasoning maybe we should repeal laws against murder. At least until there is some evidence that they actually work.

                      But there is evidence that gun control works, in that countries that have it, have far less gun violence than we do here. Sure, Canada has an occasional mass shooting — it had one just a few days ago — but they’re not the regular, routine events that they are in the US. And having lived in Canada, I can tell you that just as many Canadians hunt as Americans do.

                      Now, that does not mean that every specific proposal I’ve made will help fix the problem. The nature of finding a political solution to any specific problem is trial and error. If a specific proposal doesn’t work, repeal it and try something different. That’s the way democracy works. But what you don’t do is simply refuse to try because no proof anything will work. There’s no proof that any of these vaccines they’re working on will do anything about Covid-19 either, but that’s not a reason to try.

                      And I close with a comment on your 50 MPH comment. Yes, a 50 MPH speed limit would save lives, and a 10 MPH speed limit would save even more, but that’s not how we analyze things. You draw a balance between the reasonable needs of drivers and the need to save lives, and try to find a sweet spot where the speed limit is low enough to save lives but high enough that people can get from New York to Chicago in a reasonable amount of time. In other words, balance and nuance.

                      If we adopted your gun control rationale to speed laws, we would say that there should be no speed limits whatsoever — if someone wants to zoom through a school zone at 80 MPH, they can do so — because people will just break the law anyway and there’s no proof that any given speed limit is the sweet spot. We have a name for that logical fallacy; it’s called a false choice. If it ain’t Christmas, it must be the Fourth of July.

                    7. My apologies. I was hoping to have a serious discussion.

                      I will make one comment on this: “On the issue of whether my proposed regulations would work — you want to see my homework — is there any evidence that laws against murder work?”

                      There is a pretty fundamental difference in the justification of malum in se vs. malum prohibitum laws.

                      If Fred rapes Mildred and then stabs her to death with a screwdriver to eliminate her as a witness, we don’t need a cost/benefit analysis – there is no societal benefit from rapists killing their victims. When you decide to ban screwdrivers, though, you do have to consider the costs.

                    8. Well, if you were hoping to have a serious discussion, maybe you shouldn’t have misrepresented what you said, misrepresented what I said, not responded to my actual points, and made one logical fallacy after another. Other than that, I guess your comments have been pretty good.

                    9. “4)bans on large magazines: I actually don’t object to this – because anyone with minimal familiarity can reload fast enough to defend themselves, or commit mass murder. Give me 20 minutes of your time at the range and you can too. So the effect will be minimal at best. Sadly, you don’t need a big magazine (or a pistol grip or …) to massacre a class of 2nd graders.”

                      The problem with, (One of the problems with…) bans on “large” magazines, is that “large” is an arbitrary number which can be arbitrarily reduced over time.

                      In practice we’re not talking about the 100 round magazines I keep in the gun safe with my Calico. In practice the “large” magazines being banned are actually normal sized magazines, the standard size the guns are designed to hold, and the bans are actually forcing people to obtain unusual under-sized magazines.

                    10. When you point to other countries that have fewer mass shootings, you only prove my point. They don’t have “reasonable and common sense restrictions.” They have basically full bans. Full bans which you claim you don’t want. None of your proposals will have any effects on mass shootings. Even the magazine limit has been proven to be a canard over and over, as evidenced by the number of mass shootings successfully carried out with 10 rounders. Not to mention that even the 10 round threshold isn’t based on any limiting principle. New York tried 7. Canada has 5. Why not 1?

                    11. “The other important purpose that gun control laws serve is that they shift the cost to criminals.”

                      Again I refer you to California where the cost of gun control is born by the law abidig gun owners. The state charges gun buyers nearly $40 per gun for a background check that the feds do for no charge to gun buyers in other states. There is also a charge for a background check each time you buy ammunition. If these laws are for the good of society and not designed to make it harder for law abiding gun owners then society should bear the cost.

                  3. Thank you for proving that gun control LAWS don’t work. It’s illegal for a resident of California to buy a gun from another state unless the transaction goes through a licensed California dealer. It is also illegal to smuggle guns into California and sell them to people in California without going through a Californa licensed dealer.

                    Tell me again how gun control laws stop criminals from getting guns. Do they work the same way drug laws prevent people from getting illegal drugs?

          2. What constitutes a large magazine? 15? 10? 7 (as New York did)? What is “armor-piercing ammunition?”

          3. “That would impact maybe 10% of gun owners and gun sales, if that. All of your handguns, hunting rifles and sport rifles would remain completely unaffected.”

            Approximately 44 million Americans each year seek treatment for some form of mental illness. It is a documented fact that someone with a mental illness is more likely to be a victim of a violent crime than a perpetrator. Yet you ignorantly claim they shouldn’t be permitted to exercise the same basic rights as everyone else.

            Your ideas are bullshit, just like every other leftist gun-control fantasy.

            1. I just googled it, and while you are correct that 44 million Americans seek treatment for mental illness every year, the term “mental illness” takes in a lot of ground. It includes, for example, situational depression that tends to go away once circumstances have changed. So, I probably swept with too broad a brush; there are no doubt some types of mental illness that should preclude gun ownership. In that case, mental health experts should be consulted to determine what specific types of mental illness increase someone’s dangerousness level.

              But here’s the fundamental difference between the two of us on this issue. You don’t want gun control to work, so there is never going to be a regulation that you can’t find something to nitpick and say, Oh, it won’t work. For you, it’s all or nothing.

              I on the other hand recognize that life often involves having to strike a balance between competing interests. So if I sweep with too broad a brush, the solution is to narrow the sweep, not burn the broom.

              1. “You don’t want gun control to work”

                I think that kind of depends on what you mean by ‘gun control’. If you can imagine some perfect gun control that makes it 100% impossible for crooks to acquire or misuse guns, with zero impact on the law abiding then you will find that 99.947% of NRA members enthusiastically support such laws. NRA members don’t like to be crime victims any more than you do.

                OTOH, the inverse case – policies that have large impacts on the law abiding but minimal impact on crooks – are for some reason unpopular with gun owners, who feel like a society where only the crooks are armed is suboptimal.

                And look at so many of the proposals – we’ve had decades long controversies over bayonet lugs and pistol grips. Remember the SAFE act, where you could have ten round magazines, but it was a crime to load more than seven. What’s your estimate of the number of spree killers who would honor that? So many of the proposals floated seem profoundly silly. Gun owners debate how much of that is animus vs. ignorance – it’s probably some of both, but not getting support for silly laws shouldn’t be a surprise.

                Seriously, if you want to propose a restriction, gather your evidence – how many lives will be saved (and show your work!), what will the impact be on the law abiding, and narrowly tailor the restriction to maximize the first and minimize the second.

                For example, let’s talk about the old standby, waiting periods. Here’s how to get all the benefit with few of the drawbacks: some years ago a fellow went to a range, rented a gun and killed himself. The papers splashed it all over the front page for days, leading to … you guessed it, copycats. The range owners obviously wanted to minimize that, both because they are decent human beings and because it requires an expensive shutdown. So they adopted the following policy: new customers had to either a)arrive with a friend or b)arrive with a gun (e.g., you want to rent and shoot the new Glock, you could bring in your deer rifle). There might have been some other exceptions – vets, etc, I don’t remember exactly. The theory being that people won’t bring a friend along and kill themselves, and if you already had a gun you could use it w/o renting one from them. And it was pretty close to 100% effective, without, IIUC, particularly reducing their business. Why not adopt some of that?

                But waiting period laws rarely include any of that. Heck, when the Seattle police academy graduated a class, their FTOs would suggest they get a backup/off duty gun. On their lunch break they would drive up to the Police Athletic Assn. range in the patrol car, in uniform, with their city issued sidearm and pick out a gun … and learn there was a 5 day waiting period if they didn’t have a concealed permit, which most didn’t. That’s not … narrowly tailored.

                And this is all for something that is likely to have a minimal effect; very few guns are used in crime or suicide withing the duration of a waiting period after purchase.

          4. The 2nd is more about the citizen soldier than hunting and sporting. The citizen soldier needs exactly the same arms as the government soldier, and for the same reasons. So, magazine bans, armor piercing ammo, etc., are all necessary, and should be protected via the 2nd.

            1. What you refer to as “citizen soldiers” is, most of the time, little more than an armed mob. That has certainly been the case for much of our history, from the Whiskey Rebellion to armed vigilantes to the KKK. Sorry, I don’t agree that the Second Amendment should be interpreted in such a way as to enable armed mobs.

              I understand the theory. If we ever elect Hitler, it would be nice if the populace had the means to defend themselves. The problem is that for every genuine Hitler there are probably 100 lynch mobs, vigilante mobs and other unsavory gangs of goons who most assuredly should not be able to out-shoot legitimate authority. On those rare occasions when legitimate authority actually stood up to them, that is.

              1. “Legitimate” is in the eye of the beholder.

                1. To a certain extent legitimate is in the eye of the beholder, but you can’t have individual armed mobs each deciding for themselves what is legitimate and what isn’t. That’s anarchy. That’s also why we have a court system set up to resolve such disputes.

                  If any of these militia groups ever actually do go on a rampage, it is not going to end well for anyone. Including them.

              2. “What you refer to as “citizen soldiers” is, most of the time, little more than an armed mob.”

                That’s not so. What I refer to is an armed citizenry that can defend itself and indeed, attack a tyrannical government.

                And no need to say you’re sorry, I don’t subscribe to your interpretation of the 2nd, I’m going with the intent and reality of it.

                1. But who gets to decide when the government is tyrannical and needs to be attacked? Don’t forget that American independence happened as the result of a duly elected legislature deciding to declare independence. It was not just some ragtag militia deciding they didn’t want to pay taxes any more.

                  And “who gets to decide” is a far more important point than you appreciate. What happens when there are rival militias? What happens when there is no consensus on whether a particular government is tyrannical? What happens if most of the populace is generally content but a few armed hotheads decide the tyranny has become unbearable? There needs to be a structure in place for making these decisions before it’s time to make these decisions.

                  And I’m right on the historical reality. Your theory may be beautiful but the historical reality is that most of our armed citizen soldiers have been far more thuggish than liberty loving.

                  1. Might equals right. The decision is made by the winner, in retrospect.

                    1. OK, so your political philosophy is that might makes right. Thanks for clearing that up.

                  2. Your argument is off the point. I never mentioned who gets to declare, when, how, by whom, or anything else like that. I’m only saying that the RKBA relates more to the citizen soldier than to sporting, and that when the time comes, he’d best be as well armed as the government soldier.

                    Incidentally, I disagree with your statement that “most of our armed citizen soldiers have been far more thuggish than liberty loving.” Our citizen soldiers are, theoretically, most of the population, armed or otherwise. Thuggish groups who arm themselves are relatively, statistically non-existent.

          5. Which other exercise of a fundamental enumerated right incorporated against the states under the 14th Amendment due process clause are subject to such preconditions?

      4. Is dynamite “arms” within the meaning of the Second Amendment?

        No.

    3. Kavanaugh was pretty clear—text and tradition. So traditionally Texas heavily regulated handguns and traditionally almost every state regulated concealed guns outside the home so that means these regulations pass constitutional muster based on Kavanaugh’s standard.

      1. Incorrect. The regulating of those was much later than when the 2nd was written. Hence those laws do not pass constitutional muster based on Kavanaugh’s standard.

        1. Concealed weapons were regulated when Madison was still alive brainiac.

          1. Not until 1911 in New York City.

            1. So? They were regulated in many other places when Madison was alive. Kavanaugh has a lifetime seat to use his standard of text and tradition.

              1. So was the right for a man to sodomize his “husband.”

                1. Ask Kavanaugh…it’s his standard.

              2. “They were regulated in many other places when Madison was alive.”
                Name three.

                1. James Madison lived to 1836 so Louisiana, Kentucky, and Indiana.

                  1. I missed Indiana when I looked.

                    So, in 1836 there were 25 states. Three out of 25 is not “many.”

                    1. You asked for 3. In the 1990s states started the concealed carry laws so obviously most states prohibited concealed handguns for most of America’s existence.

              3. “They were regulated in many other places when Madison was alive.”

                Define “many.” Madison died in 1836. The only two states that I am aware to have outlawed concealed carry in his lifetime are Kentucky and Louisiana. Kentucky’s 1813 laws was declared unconstitutional in 1822. So, that leaves one, for the most part.

                So, you are wrong about that, as one is not many.

      2. Traditionally and historically, open carry is the right whereas concealed carry has always been the licensed privilege. See Nunn v. Georgia for the text.

    4. “I really don’t see how allowing somebody to buy something only from private sellers, and not from businesses, can possibly pass even genuine rational basis analysis.”

      I believe it is “transfer” not “buy” — and would you feel differently about a parent giving a gun to a 19-year-old child? What if it is a daughter living in a bad neighborhood, or one with a psycho ex-boyfriend?

      1. It’s the restriction I don’t see an excuse for, not the exception.

        1. Texas always held itself out of a very pro-2A state and yet it traditionally heavily regulated handguns. So pursuant the Kavanaugh standard of text and tradition those restrictions on handguns are constitutional.

          1. When you say ‘are constitutional’, do you mean ‘don’t violate the Texas constitution’, or ‘don’t violate the US constitution’? Because if you are suggesting that one state’s practices should extend across all states, I nominate Vermont’s traditional handling of handguns to be the state that is extended nationally :-).

            1. Kavanaugh goes by text and tradition. Historically Texas believed it was a very pro-2A state and traditionally it heavily regulated handguns. And when Texans held out their state as a pro-2A state its leaders like George W Bush and John Tower and Dick Armey were referring to the 2A in the US Constitution. So in America tradition says outside the home guns can be regulated fairly liberally. Sorry, Kavanaugh’s standard and he has a lifetime seat on the bench.

              1. Sooo… your constitutional rule can be summarized as ‘prominent republican politicians get to pick which state’s traditions can be imposed on the rest of the country’? Seems legit.

                Or is the rule ‘it’s always Texas’, whether the issue is the death penalty, guns, or abortion?

                1. It’s “don’t mess with Texas”. And yes, when Republicans vote for pro-2A president George HW Bush who enacts federal gun control measures like school zone regulations then that becomes a “tradition”. Maybe in a hundred years we will have different traditions but right now we have traditionally heavily regulated guns outside the home.

                  Now I will give you an example of something that goes against tradition—when Reagan was governor of California he started peeing his panties because scary black dudes started walking around with guns. So Reagan did what any good racist would do and outlawed open carry. So California had a tradition of open carry but racism undermined that tradition. So Americans do have some right to open carry but the limitations can be fairly liberal.

              2. “Historically Texas believed it was a very pro-2A state and traditionally it heavily regulated handguns.”

                That’s a pretty broad statement, made without applying context to “historically” and “tradition.”

                Historically, Texas wasn’t a state. That only began in 1845. There’s no evidence that I can find that ‘Texas’ believed anything, let alone that it was pro-2A. Who, exactly, is ‘Texas.”

                Their first gun control went into effect in 1871. It was essentially repealed in 1995.

                So, what is tradition?

                1. George W Bush tells an anecdote about his first run for Congress in 1978 in Texas. Everyone running for the seat was asked a question about gun control and W went first and said he didn’t support gun control. Everyone’s answer became more hostile to gun control than the person before. By the time it got to the incumbent Democrat congressman he said if anyone attempted to take someone’s gun he would use his gun and go get the individual’s gun back!

                  And now Bush’s lackey Kavanaugh is a justice and he employs the standard of text and tradition…and as you point out Texas has heavy regulations on handguns for over 100 years. So traditionally Texas regulated handguns even though Texans believed they were very pro-2A.

  2. The law is so flagrantly unconstitutional that there’s no good faith way to defend it.

  3. ” . . . shall not be infringed . . . ”
    Sounds like an infringement to me.

    Either repeal the second amendment, or let it stand and invalidate gun control laws.

    1. Or in the alternative overturn Heller and produce an opinion that properly interprets the 2A. So if the 2A refers to the unorganized militia why didn’t Jefferson Davis blow a shofar and get patriots with guns to defend the South when a tyrant threatened its people?? So the CSA organized an army with arms procured from federal and state militia supplies. And prior to that Davis organized a militia on the condition the federal government would supply the militia with guns.

      1. Yes there was a regular army but there also were militias the regular army had weapons supplied to them while the militias were citizens who volunteered to serve and brought their own weapons with them.
        That being said since Jefferson Davis did displace the union army in the south there was no reason that he would not use the weapons that he found. BTW that also included cannons and mortars also. This has been the way that armies have done through history. Why should Davis have to buy other weapons when he just got a windfall perfectly usable weapons?

        1. Jefferson Davis was in a militia during the Mexican War and a condition for them to serve was that the federal government had to supply them with rifles.

          And the context of the 2A was that it was in response to the events of Lexington and Concord which involved in the British attempting to capture the Massachusetts militia’s weapons which were stored at central location…so it wasn’t about disarming individuals but disarming the actual organized militia.

      2. Right after they overturn Roe and produce an opinion that properly notes that there is no mention of abortion or a right to privacy in the Constitution.

        Who are you to say that Heller improperly interpreted the 2A?

        1. Roe will be overturned and it will benefit Democrats. Cruikshank properly points out the RKBA does not come from the 2A but that doesn’t mean we don’t have that right.

          1. “Cruikshank properly points out the RKBA does not come from the 2A”

            Only in the sense that it was a pre-existing right which the 2nd amendment directed not be infringed, rather than creating. NOT in the sense that the 2nd amendment doesn’t protect it.

            1. 2A is a federalism provision that protects the state militias. So the 2A was a response to the events at Lexington and Concord that involved a militia’s centrally located military supplies.

  4. The way I look at 18 ti 20 year old buying weapons is if they are without a police or mental record and can be drafted to fight in wars then these young men and women should be allowed to buy weapons legally.

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