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Judge Kavanaugh and the Second Amendment

The text, history, and tradition methodology applied to D.C.'s unusually restrictive gun laws.

No nominee to the U.S. Supreme Court has had such a detailed record on Second Amendment as does Brett Kavanaugh. His 2011 dissenting opinion in the case known as Heller II was consistent with his long-standing adherence to text, history, tradition, and Supreme Court precedent.

Background: In 2008, the U.S. Supreme Court affirmed that the Second Amendment is an individual right, and is not limited only to militiamen. The Court carefully examined the text of the Second Amendment and the history of the right from early England through Reconstruction. The Court held two D.C. ordinances to violate the Second Amendment: a handgun ban and a prohibition on using any firearm in the home for self-defense. The District also forbade all gun carrying without a permit, even carrying shotgun from one's bedroom to the basement for cleaning. Carry permits were never issued. The Court ordered D.C. to issue Dick Heller a carry permit.

Following the Supreme Court decision, the D.C. Council enacted very restrictive gun controls. A new lawsuit resulted, among whose plaintiffs were Mr. Heller. In the 2011 case known as Heller II, a 2-1 panel of the D.C. Circuit upheld some of the new D.C. ordinances and remanded others to the district court. Judge Kavanaugh wrote a dissenting opinion. Later, in 2015's Heller III, another 2-1 D.C. Circuit panel (not including Judge Kavanaugh) upheld some more of the D.C. laws and held others unconstitutional. (Here's my analysis of Heller III.)

The 2011 Heller II majority opinion has had broad influence in the lower federal courts. (For details: Kopel & Greenlee, The Federal Circuits' Second Amendment Doctrines, St. Louis University Law Journal (2017)). Judge Kavanaugh offered a different approach.

"Text, history, and tradition" methodology for Second Amendment cases

Judge Kavanaugh noted the controversy over gun control, and cited articles by Judges Richard Posner and J. Harvie Wilkinson, III, which criticized the Heller decision. (Here's a critique of Judge Wilkinson's critique.) "As a lower court, however, it is not our role to re-litigate Heller or to bend it in any particular direction. Our sole job is to faithfully apply Heller and the approach it set forth for analyzing gun bans and regulations."

The new D.C. law banned many semi-automatic rifles. The prohibition was acknowledged to be the broadest in the United States. Judge Kavanaugh explained that Heller prevents a ban on semi-automatic handguns, and the same reasoning applies to similar rifles:

In Heller, the Supreme Court held that handguns—the vast majority of which today are semi-automatic—are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller's protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.'s ban on them is unconstitutional. (By contrast, fully automatic weapons, also known as machine guns, have traditionally been banned and may continue to be banned after Heller.)

The new D.C. gun registration laws were also unusual:

D.C.'s registration requirement, which is significantly more stringent than any other federal or state gun law in the United States, is likewise unconstitutional. Heller and later McDonald [v. Chicago, 2010] said that regulations on the sale, possession, or use of guns are permissible if they are within the class of traditional, "longstanding" gun regulations in the United States. Registration of all lawfully possessed guns—as distinct from licensing of gun owners or mandatory record-keeping by gun sellers—has not traditionally been required in the United States and even today remains highly unusual.

Under Heller's history-and tradition-based test, D.C.'s registration requirement is therefore unconstitutional.

Judge Kavanaugh explained that Heller authorized many gun controls:

Indeed, Heller largely preserved the status quo of gun regulation in the United States. Heller established that traditional and common gun laws in the United States remain constitutionally permissible. The Supreme Court simply pushed back against an outlier local law—D.C.'s handgun ban—that went far beyond the traditional line of gun regulation. As Heller emphasized: "Few laws in the history of our Nation have come close to the severe restriction of the District's" law. 554 U.S. at 629.

...D.C. appeared to push the envelope again, with its new ban on semi-automatic rifles and its broad gun registration requirement. D.C.'s public safety motivation in enacting these laws is worthy of great respect. But the means D.C. has chosen are again constitutionally problematic. The D.C. gun provisions at issue here, like the ban at issue in Heller, are outliers that are not traditional or common in the United States. As with D.C.'s handgun ban, therefore, holding these D.C. laws unconstitutional would not lead to nationwide tumult. Rather, such a holding would maintain the balance historically and traditionally struck in the United States between public safety and the individual right to keep arms—a history and tradition that Heller affirmed and adopted as determining the scope of the Second Amendment right.

In Judge Kavanaugh's view, "gun bans and regulations" should "be analyzed based on the Second Amendment's text, history, and tradition (as well as by appropriate analogues thereto when dealing with modern weapons and new circumstances..." He did not think judges should "re-calibrate the scope of the Second Amendment right based on judicial assessment of whether the law advances a sufficiently compelling or important government interest to override the individual right." In his view, Heller had been clear that Second Amendment cases should be decided "based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny."

Judge Kavanaugh's dissent detailed how the Heller opinion relied on "text, history, and tradition." So too was McDonald v. Chicago, he argued. (McDonald, decided in 2010, held that the Second Amendment applies to state and local governments, thanks to the Fourteenth Amendment.) He noted that this approach was compatible with gun control:

Indeed, governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny. After all, history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right and are consistent with that right, as the Court said in Heller. By contrast, if courts applied strict scrutiny, then presumably very few gun regulations would be upheld.

The text/history/tradition standard is "much less subjective because "it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethico-political First Principles whose combined conclusion can be found to point in any direction the judges favor." (Quoting Justice Scalia's concurrence in McDonald). Although historical inquiry may involve difficult questions, "the range of potential answers will be far more focused under an approach based on text, history, and tradition than under an interest-balancing test such as intermediate scrutiny."

What about "when legislatures seek to address new weapons that have not traditionally existed or to impose new gun regulations because of conditions that have not traditionally existed"? Then, "in such cases, the proper interpretive approach is to reason by analogy from history and tradition."

Not everything that is traditional is necessarily constitutional, Judge Kavanaugh wrote in a footnote. "[P]post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text." For example, "The practice of separate but equal was inconsistent with and repugnant to the text and original meaning of the Equal Protection Clause. See Brown v. Bd. of Education, 347 U.S. 483 873 (1954); Strauder v. West Virginia, 100 U.S. 303 (1880)."

Why the semi-automatic ban failed heightened scrutiny

If an interest balancing test were to be used, it should be strict scrutiny:

A ban on a class of arms is not an "incidental" regulation. It is equivalent to a ban on a category of speech. Such restrictions on core enumerated constitutional protections are not subjected to mere intermediate scrutiny review. The majority opinion here is in uncharted territory in suggesting that intermediate scrutiny can apply to an outright ban on possession of a class of weapons that have not traditionally been banned.

...

The vast majority of handguns today are semi-automatic. In Heller, the Supreme Court ruled that D.C.'s law banning handguns, including semi-automatic handguns, was unconstitutional. District of Columbia v. Heller, 554 U.S. 570, 628–29 (2008). This case concerns semi-automatic rifles. As with handguns, a significant percentage of rifles are semi-automatic....

[I]t would strain logic and common sense to conclude that the Second Amendment protects semi-automatic handguns but does not protect semi-automatic rifles....

[T]he Second Amendment as construed in Heller protects weapons that have not traditionally been banned and are in common use by law-abiding citizens. Semi-automatic rifles have not traditionally been banned and are in common use today, and are thus protected under Heller.

As Justice Kavanaugh explained, semi-automatic rifles date back to the Winchesters and Remingtons of 1903-06. Meanwhile, "The first semi-automatic shotgun, designed by John Browning and manufactured by Remington, hit the market in 1905 and was a runaway commercial success....Many of the early semi-automatic rifles were available with pistol grips. These semi-automatic rifles were designed and marketed primarily for use as hunting rifles, with a small ancillary market among law enforcement officers." (citing John Henwood, The Forgotten Winchesters.) "Semi-automatic rifles remain in common use today, as even the majority opinion here acknowledges."

Although a few states and municipalities ban some categories of semi-automatic rifles, most of the country does not, and even the bans that exist are significantly narrower than D.C.'s. What the Supreme Court said in Heller as to D.C.'s handgun ban thus applies just as well to D.C.'s new semi-automatic rifle ban: "Few laws in the history of our Nation have come close to the severe restriction of the District's" law. 554 U.S. at 629.

...

in its 1994 decision in Staples, the Supreme Court already stated that semi-automatic weapons "traditionally have been widely accepted as lawful possessions." 511 U.S. at 612. Indeed, the precise weapon at issue in Staples was the AR-15. The AR-15 is the quintessential semi-automatic rifle that D.C. seeks to ban here. Yet as the Supreme Court noted in Staples, the AR-15 is in common use by law-abiding citizens and has traditionally been lawful to possess.

The D.C. law also banned magazines over 10 rounds. The majority upheld the ban, but Judge Kavanaugh would have remanded for fact-finding:

In order to apply Heller's test to this prohibition, we must know whether magazines with more than 10 rounds have traditionally been banned and are not in common use. The parties here did not brief that question in much detail. Evidence presented to the District Court on the history and prevalence of magazines of more than 10 rounds would be helpful to the proper disposition of that issue under the Heller test. Therefore, I would remand to the District Court for analysis of that issue.

(Those questions are addressed in my article The History of Firearms Magazines and Magazine Prohibitions.)

In balancing interests, the panel majority had weighed the interests wrongly:

The majority opinion next contends that semi-automatic handguns are good enough to meet people's needs for self-defense and that they shouldn't need semi-automatic rifles. But that's a bit like saying books can be banned because people can always read newspapers. That is not a persuasive or legitimate way to analyze a law that directly infringes an enumerated constitutional right. Indeed, Heller itself specifically rejected this mode of reasoning: "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." 554 U.S. at 629.

So "D.C.'s at-least-you-can-still-possess-other-kinds-of-guns argument is no more persuasive this time around."

The majority had also failed to consider the rights of hunters:

Furthermore, the majority opinion's assertion does not sufficiently account for the fact that rifles, but typically not handguns, are used for hunting. Cf. Heller, 554 U.S. at 599 (most founding-era Americans "undoubtedly" thought right to own firearms "even more important for self-defense and hunting" than for militia service).

Judge Kavanaugh was skeptical of "the rhetorical term 'assault weapon'" and of labeling the banned guns "offensive." The guns are used in crime much less often than handguns are. Semiautomatic rifles fire at the same rate as semiautomatic handguns, which can't be banned. "[I]t is the person, not the gun, who determines whether use of the gun is offensive or defensive."

Under intermediate scrutiny, yet another problem with D.C.'s law is its tailoring. The law is not sufficiently tailored even with respect to the category of semi-automatic rifles. It bans certain semi-automatic rifles but not others—with no particular explanation or rationale for why some made the list and some did not. The list appears to be haphazard. It does not reflect the kind of tailoring that is necessary to justify infringement of a fundamental right, even under the more relaxed intermediate scrutiny test.

D.C. unusual gun registration ordinances fail the history and tradition test

The Supreme Court in Heller had affirmed the permissibility of certain "longstanding" gun controls.

The fundamental problem with D.C.'s gun registration law is that registration of lawfully possessed guns is not "longstanding." Registration of all guns lawfully possessed by citizens in the relevant jurisdiction has not been traditionally required in the United States and, indeed, remains highly unusual today.

In contrast, gunowner licensing could be appropriate:

Licensing requirements mandate that gun owners meet certain standards or pass certain tests before owning guns or using them in particular ways. Those laws can advance gun safety by ensuring that owners understand how to handle guns safely, particularly before guns are carried in public. For example, many jurisdictions that permit the carrying of concealed weapons have traditionally imposed licensing requirements on persons who wish to carry such weapons. Registration requirements, by contrast, require registration of individual guns and do not meaningfully serve the purpose of ensuring that owners know how to operate guns safely in the way certain licensing requirements can. For that reason, registration requirements are often seen as half-a-loaf measures aimed at deterring gun ownership....

Likewise, it's also important at the outset to distinguish registration requirements imposed on gun owners from record-keeping requirements imposed on gun sellers. Some record-keeping requirements on gun sellers are traditional and common. Thus, the government may constitutionally impose certain record-keeping requirements on the sellers of guns. See Heller, 554 U.S. at 627 (listing "conditions and qualifications on the commercial sale of arms" as being within category of traditional gun regulations).

...

There certainly is no tradition in the United States of gun registration imposed on all guns.

Even compared to the few states that do have gun registration, "It is undisputed in this case that D.C.'s myriad registration-related requirements are unique—and uniquely burdensome—among laws in the United States." Thus, the D.C. registration system violated the test of history and tradition.

It was true that early American militia laws required militiamen to show that they possessed the mandatory arms. But "those early militia laws applied only to militiamen, not to all citizens.... Second, militia members were required to submit for inspection only one or a few firearms, not all of their firearms. That's because the purpose of those early militia requirements was not registration of firearms, but rather simply to ensure that the militia was well-equipped." So "Yet again, what the Supreme Court said in Heller with respect to D.C.'s handgun ban applies as well to D.C.'s registration requirement: 'Few laws in the history of our Nation have come close to the severe restriction of the District's' law."

An earlier Supreme Court case on gun control (U.S. v. Miller, 1939), had examined a prosecution for possession of an unregistered firearm. (The National Firearms Act of 1934 required registration for short-barreled shotguns and rifles, and for machine guns).

If registration were constitutionally permissible for all lawfully possessed guns, the Court could simply have affirmed the conviction on that ground. Instead, the Miller Court analyzed whether the kind of gun Miller possessed—a sawed-off shotgun—was within the class of weapons protected by the Second Amendment. The Court's approach suggested that the government could require registration only of guns that were outside the protection of the Second Amendment—namely, those classes of guns that the government had traditionally banned and that were not in common use, such as machine guns and sawed-off shotguns.

Why the registration laws fail heightened scrutiny

To begin with, it would be hard to persuasively say that the government has an interest sufficiently weighty to justify a regulation that infringes constitutionally guaranteed Second Amendment rights if the Federal Government and the states have not traditionally imposed—and even now do not commonly impose—such a regulation.

D.C. hadn't offered a persuasive rationale for the registration law, but perhaps it could do so if it got another chance in district court:

Moreover, D.C.'s articulated basis for the registration requirement is that police officers, when approaching a house to execute a search or arrest warrant or take other investigative steps, will know whether the residents have guns. But that is at best a Swiss-cheese rationale because police officers obviously will assume the occupants might be armed regardless of what some central registration list might say. So this asserted rationale leaves far too many false negatives to satisfy strict or intermediate scrutiny with respect to burdens on a fundamental individual constitutional right. D.C.'s registration law thus does not appear to be sufficiently tailored to advance a compelling or important government interest for purposes of the heightened scrutiny tests. That said, D.C. alludes to the possibility that other rationales might be asserted to support a registration requirement. Therefore, if I were applying a form of heightened scrutiny to the registration requirement, I would remand for further analysis of the interests that might be asserted. (It is possible, moreover, that the registration law might pass intermediate but not strict scrutiny.)

Indeed, under the decision of the majority of the Heller II, the most novel parts of registration law were remanded to the district court for further factfinding and development. Ultimately, some of the laws were upheld and some were not, in Heller III, under intermediate scrutiny. (As noted, Judge Kavanaugh was not on the Heller III panel.)

In conclusion, Judge Kavanaugh explained that he might favor some of the above gun controls as a matter of policy, but he thought them contrary to Supreme Court precedent:

As one who was born here, grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug, and gang violence that has plagued all of us. As a citizen, I certainly share the goal of Police Chief Cathy Lanier to reduce and hopefully eliminate the senseless violence that has persisted for too long and harmed so many. And I greatly respect the motivation behind the D.C. gun laws at issue in this case. So my view on how to analyze the constitutional question here under the relevant Supreme Court precedents is not to say that I think certain gun registration laws or laws regulating semi-automatic guns are necessarily a bad idea as a matter of policy. If our job were to decree what we think is the best policy, I would carefully consider the issues through that different lens and might well look favorably upon certain regulations of this kind. But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy. See Texas v. Johnson, 491 U.S. 397, 420–21 (1989) (Kennedy, J., concurring) [striking law against flag-burning] ("The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result."). A lower-court judge has a special obligation, moreover, to strictly and faithfully follow the lead of the "one supreme Court" established by our Constitution, regardless of whether the judge agrees or disagrees with the precedent.

Few government objectives are more important than fighting violent crime.

That said, the Supreme Court has long made clear that the Constitution disables the government from employing certain means to prevent, deter, or detect violent crime. See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961) [exclusionary rule against using illegally-seized evidence in court]; Miranda v. Arizona, 384 U.S. 436 (1966) [arrestees must be informed of their right to counsel]; City of Indianapolis v. Edmond, 531 U.S. 32 (2000) [against random checkpoints for motorists]; Crawford v. Washington, 541 U.S. 36 (2004) [enforcing right to confront witnesses in criminal trial]; Kennedy v. Louisiana, 554 U.S. 407 (2008) [death penalty only for treason or for crimes resulting in a death, not for aggravated rape]; District of Columbia v. Heller, 554 U.S. 570 (2008). In the words of the Supreme Court, the courts must enforce those constitutional rights even when they have "controversial public safety implications." McDonald v. City of Chicago, 130 S.Ct. 3020, 3045 (2010) (controlling opinion of Alito, J.).

Judge Kavanaugh's text, history, and tradition methodology for Second Amendment cases will not please people who believe that all gun control is impermissible, nor will it please advocates who want to make the Second Amendment a second-class right.

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  • jdgalt1||

    The most noticeable thing about both the Heller and McDonald decisions is that they effectively don't apply in California, because the 9th Circuit has ignored them with impunity and lets the state pass any rules it wants -- including a new one that is impossible to comply with. So far, SCOTUS has refused to review at least two of these cases.

    My question for Judge Kavanaugh at his confirmation hearing is, will you change that?

  • Michael Ejercito||

    The 9th Circuit never reviewed that law.

  • ||

    No, but the 9th Circuit upheld a law requiring guns to be locked up, even if you live alone, and even if you're temporarily in the shower. It also upheld a law that Alameda County could ban gun stores basically everywhere. Gun stores can be zoning regulated the same way other retail stores can be. Anything beyond that violates the 2nd Amendment.

  • Steponsnek||

    Professor Lund raised some concerns about Judge Kavanaugh's interpretive methodology in "Second Amendment Standards of Review in a Heller World."

    Also, from Judge Kavanaugh's dissent in Heller II: "Before addressing the majority opinion's contrary analysis of Heller and McDonald, it is important to underscore two points regarding Heller's focus on text, history, and tradition. First, just because gun regulations are assessed by reference to history and tradition does not mean that governments lack flexibility or power to enact gun regulations. Indeed, governments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny. After all, history and tradition show that a variety of gun regulations have co-existed with the Second Amendment right and are consistent with that right, as the Court said in Heller. By contrast, if courts applied strict scrutiny, then presumably very few gun regulations would be upheld. Indeed, Justice Breyer made this point in his dissent in Heller when he noted that the majority opinion had listed certain permissible gun regulations whose constitutionality under a strict-scrutiny standard would be far from clear." Heller v. D.C., 670 F.3d 1244 (D.C. Cir. 2011) ("Heller II"), at 1274 (Kavanaugh, J., dissenting) (footnotes, internal quotations, and citations omitted).

  • Brett Bellmore||

    I find that rather troubling; The reason there's a great deal of "traditional" gun control is basically the same as the reason there was a great deal of "traditional" discriminatory law during Jim Crow: For 68 years the Supreme court refused to uphold the 2nd amendment, refused to even grant cert. if one of the parties to a case had mentioned it.

    Secondly, of course, Scalia only referred to such laws as presumptively constitutional. That means, constitutional pending further review. It's over-reading Heller to say that such laws have been ruled constitutional, they merely haven't been ruled unconstitutional yet.

  • ||

    Exactly. People interpret Scalia's dicta to mean that the blanket ban on felons possessing guns is Constitutional, when he said no such thing. It's hard to argue that a person convicted of securities fraud back in the 70s can be constitutionally denied a gun today.

  • California Right To Carry||

    Professor Lund hates Open Carry and wants to see it replaced with "shall-issue" concealed carry which the Heller and McDonald decisions preclude as does Judge Kavanaugh's methodology.

  • ||

    In the states outside of America (NY, NJ, CA, MA, MD, HI, and DC), I'd settle for shall-issue carry in any form.

  • Clayton Cramer||

    Not sure that Lund really hates open carry, which tells a criminal who to shoot FIRST. From a practical standpoint, open carry is no advantage, but it does provoke irrational fear. Many people find open carry disturbing. Concealed carry does not, because they are not seeing it.

  • Doug Huffman||

    M. Hihn opens with a vulgarity and closes with an ad hominem.

  • VinniUSMC||

    Sandwiching his normal, completely backwards, "understanding" of Heller.

    Don't expect better from the Hihnsane Hihntard. He deserves nothing more than ridicule and derision.

  • perlchpr||

    And completely fact free, of course.

    Semi-automatic pistols were in common use at ratification. Such rifles did not exist for another century.

    "The first semi-automatic rifle was introduced in 1885, the first semi-automatic pistol in 1892, and the first semi-automatic shotgun in 1902."

    I have no idea what sort of hallucinogens Hihn has been inhaling.

  • Longtobefree||

    He is a time traveler; he thinks the ratification was in 1952.

  • phoqueue||

    Start at Page One.

    Ok.

    "The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader."
  • VinniUSMC||

    No need to be more specific. Everything you write is shit. No one is afraid of you Hihntard. You're a bullying internet blowhard with the intellect of a rock.

    Next time, use more boldface so we know you're crying.

  • Brett Bellmore||

    Ok, Dipshit, (Just truth in labeling.) let me explain this for you.

    After Miller, the Supreme court spend 68 years refusing certiori without comment to any case where the parties raised the 2nd amendment as an issue. Didn't matter if there was a circuit split, didn't matter how clearly the case raised an important issue. Mention the 2nd amendment and your case would automatically not be taken by the Supreme court, without even the courtesy of an explanation why.

    This policy on the part of the Supreme court had a number of consequences. For one, the lower courts could get away with denying that the 2nd amendment protected any individual right. (Because the Supreme court wasn't going to contradict them.) For another, the NRA adopted a policy of never challenging gun control laws on 2nd amendment grounds, because you could sometimes get them overturned on void for vagueness or other neutral grounds, but mentioning the 2nd amendment guaranteed no shot at reaching the Supreme court, and the lower courts were mostly hostile to 2nd amendment claims.

    To be continued...

  • Brett Bellmore||

    Cont...

    That the Heller case got taken by the Court, despite being explicitly a 2nd amendment case, shocked everybody. (It might have been due to Heller having prevailed in the lower court, so that refusing the case would not have saved DC's gun laws.) After McDonald, the Court has apparently returned to its policy of refusing 2nd amendment cases without comment. Hopefully one or two more Trump nominees will change that.

    The '94 AWB could not be overturned in the courts for the same general reason Jim Crow survived court challenges prior to Brown: Not because the amendment wasn't clear, because the Supreme court was hostile to the amendment which was being violated.

  • perlchpr||

    Derp.

  • TxJack 112||

    I love how people such as you always present themselves as experts on the issue of guns. First, there were no semi auto guns at the time the Constitution was ratified. In fact revolvers would not be invented for another 40 years. Second, if you want to understand the actual reason for the 2nd amendment, all you need to do is read the writings of the men who wrote it such as George Mason, Noah Webster or the Federalist Papers in which Hamilton argued against the need for a Bill of Rights and for a strong Federal government but conceded that an individual's right to bear arms was the only protection from "the excesses of government (Federalist #29). The notion we are restricted to only those weapons available at the time the Constitution was ratified is ludicrous because to place such limitations on the people totally negates the intent for which the 2nd amendment was written, to keep the power of the federal government in check.

  • DPICM||

    "First, there were no semi auto guns at the time the Constitution was ratified." This is not true.

    The Girandoni Air Rifle was in existence 4 years before the Revolutionary War concluded. It was in service with the Austrian Army by 1780, again before the war ended, and 9 years before the Constitution was ratified. It could fire 30 rounds without reloading and was lethal out to about 150 yards. And the Founders were well aware of them - Thomas Jefferson equipped the Lewis and Clarke expedition with them.

    Do not buy into this false line of argument advanced by gun control proponents. Semi Automatic weapons were known and in use at the time of the Revolution.

  • TxJack 112||

    There is a difference between a repeating firearm and a semi-auto firearm. A repeating firearm like the Girandoni Air Rifle requires the shooter to perform some manual task to reload the weapon. A semi auto firearm is self loading and only requires the shooter to pull the trigger. A Winchester level action rifle is not a semi auto rifle because the shooter must cycle the lever to load the next round. It is a repeating rifle. There were no self loading firearms at the time of the Revolutionary war so sorry, you are wrong.

  • Rossami||

    re: "revolvers would not be invented for another 40 years"

    Sorry, but you're wrong on that one, too. The earliest examples of what we today would call a "revolver" were made in German in the late 16th century. They were expensive and not all that easy to use until Sam Colt's innovation in 1836 but revolvers definitely existed and were well-known long before the Constitution was ratified.

  • TxJack 112||

    Scalia was talking about the right of people to own ACTUAL military weapons, not those labeled as such by anti -gun zealots like you. He was saying we do not have a right to own a RPG or flamethrower or chain gun and the government does have a right to restrict or even ban civilian possession of those weapons. I love how people like you take a single statement, totally out of context, and attempt to use it to support you unsupportable position. Tell you what, put all the debate aside and answer one simple question. If the Feds decided to ban all semi automatic guns, handguns and rifles< today, how exactly do you plan to enforce this law if states refuse to comply? Progressives have set the precedent with immigration that a state can simply ignore any Federal law it deems to be unjust. So if a state such as mine, Texas, simply were to say to the Feds, no we will not comply, then what? Do you plan to send in the military and start an actual shooting war? There are over 400 million guns and 50 million gun owners, if we were actually the problem, it would be obvious.

  • TxJack 112||

    The designation M means military and the military use actual assault rifles which are automatic weapons. A civilian AR is NOT a military weapon regardless of how it looks.

  • SeanF||

    Are you suggesting, with your quote of Scalia's Heller ruling, that the 2nd Amendment only protects weapons which were "in common use at the time"? That is, you think Scalia meant that only those arms in existence in the 18th century are protected by the Second Amendment, even today?

  • SeanF||

    I know Scalia ridiculed it. Your post was unclear (at least to me) as to your opinion on it. Thanks for the clarification.

  • VinniUSMC||

    The only thing Scalia ridiculed is your own ridiculous assertion, moron.

  • Rossami||

    re: "Such rifles did not exist for another century."

    Wrong. As Michael has been told many times before, the Girandoni rifle was expensive and not in widespread use but was nevertheless well known at the time of the ratification.

    Of course, Michael is wrong on pretty much every other detail in his rant as well so at least he gets points for consistency.

  • ||

    That's absolutely not what Scalia ruled. Semi-automatic rifles are exactly the type that are protected, whether by Miller or by Heller.

  • VinniUSMC||

    Nice word vomit, Hihntard.

  • Rebel Scum||

    Scalia suggests rights are subject to technological advance. Scalia is incorrect.

  • Clayton Cramer||

    "Semi-automatic pistols were in common use at ratification." Identify even one.

  • Bruce D||

    Semi-automatic pistols were in common use at ratification? Flintlocks were in common use.

    Guntards? Gun control is anti-libertarian. To promote it is anti-libertarian.

  • perlchpr||

    So, he's pretty good, but not great. Certainly better than we'd have gotten under Hillary.

    Judge Kavanaugh's text, history, and tradition methodology for Second Amendment cases will not please people who believe that all gun control is impermissible

    No, no it won't.

    "The right of the people to keep and bear arms shall not be infringed."

    It's just not that complicated of a phrase, people.

  • Brett Bellmore||

    No, it's not that complicated, but the real 2nd amendment was adopted by people who'd participated in a revolution against the world's superpower. It's being evaluated today by wusses who those guys would probably have rebelled against.

    The amendment is just too scary to expect our modern political class to embrace it.

  • TxJack 112||

    " We did not trade one tyrannical government for another. The only way for a standing army to rule, is to first disarm the people" - George Mason, father of Bill of Rights and Constitutional Delegate from Virginia. "The only protection of the people from the excesses of government, is the right to keep and bear arms" - Federalist #29 , Alexander Hamilton. Those two quotes tell you all you need to know about the 2nd amendment.

  • Longtobefree||

    Will he explain why only 10% of the bill of rights requires an expensive permit?
    Why is there no free speech permit?
    Why is there no permit required to invoke the 5th amendment?
    why?

  • JesseAz||

    I would say 20% does. Colleges are requiring more and more "security" fees for conservative speakers. Essentially a costly permit on the 1A. Granted many courts strike these down, but not always. Then there is the idiocy of the left in wanting the government to determine who is and is not covered under the press. They would love to implement press licenses like Maduro did in Venezuela.

  • Brett Bellmore||

    That may be obnoxious, it may be reprehensible, it may even be frightening, but it's not "idiocy"; They know what they want, and a free people stand in the way.

    Noticing that is many things, none of them good, but it's not idiocy. Idiocy would be innocent.

  • ||

    Thank you, thank you. Nothing drives me more crazy when conservatives say "Why won't the left understand that gun laws only impact the law abiding?" NO! They understand that just fine. Never attribute to ignorance that which is adequately explained by malice.

  • ||

    Yes, you're right. None of the weapons that liberals advocate banning today or unusually dangerous.

  • Locris||

    This thread goes on way too long to find the time for the last posting.
    But if the debate is whether or not the firearms in question are legal, permitted, protected or in wide spread use at some given time is simply an academic exercise.
    No entity or person that I have read about has been charged, for possessing or manufacturing the weapons in question. Lets not go to the obvious here, felons et cetera.
    A web query of just AR ownership will provide vastly different numbers, but all say in the millions.
    So it would stand to reason that if this particular firearm or the "class" it is in would have been long ago made illegal or such.
    Especially based upon the ideas of various political factions that do not wish for these weapons to be in the hands of those that are not controlled by said political ideologues.

  • Stephen Lathrop||

    Then there is the idiocy of the left in wanting the government to determine who is and is not covered under the press. They would love to implement press licenses like Maduro did in Venezuela.

    If you got to know it, you would find the actual left far less imposing than the one in your imagination. Show me in this nation any sign of substantial leftist backing for any such proposal. Please, see if you can find it. And if you can't, maybe take that as a prompt to reconsider a bunch of other stuff about the left which you are so sure of.

  • GabrielSyme||

    "Show me in this nation any sign of substantial leftist backing for any such proposal. Please, see if you can find it."

    Here you go:

    https://www.eff.org/deeplinks/2013/08/

    why-sen-feinstein-wrong-about-whos-real-reporter

    Reason won't let me post the full link for some reason

  • mad_kalak||

    To deter span, you can't post links more then 50 characters long. I've never taken the time master html hyperlinks.

  • Rossami||

    Direct link here.

    The format for a full link is
    < a href = "https://example.com"> test < /a>
    but without the blank spaces after the less-than symbols. Note that the quotes around the URL are important - that's what allows you to include a link of greater than 50 characters.

  • Harvey Mosley||

    Um, anyone against Citizens United? Because none of those who are against it would apply it to the real, traditional press like the New York Times or NBC News. While not a license it definitely limits speech to those who are "appropriate"..

  • Clayton Cramer||

    "Umm, you can't kill anyone with speech," So why are there laws against incitement to riot?

    Speech alone kills no one. Gun ownership or carrying alone kills no one.

  • Fat Hubie||

    History and tradition: For at least a couple of centuries, anyone could buy a gun at a hardware store without any hassles.
    After leftist intervention: For a few decades, buying a gun is an annoying hassle...

  • TxJack 112||

    What caused the Feds to enter into the gun issue and pass the NFA of 1934 was a 2 year, nationwide crime wave. All those names we know so well, Dillinger, Bonnie and Clyde, Babyface Nelson, etc. were at the heart of it. In addition, the violence of bootlegging in cities like Chicago also prompted the Feds to step in. Prior to 1934, you could purchase a Thompson submachine gun which was fully automatic at a local hardware store for less than $15. The stupidity of prohibition and the impact of the Great Depression are what started us on the path of Federal gun control. The problem is FDR, like his cousin, TDR was a progressive who decided it was time to fundamentally change the role of the Federal government to meet the needs of the 20th century and take the changes begun by Lincoln during the Civil War to their logical conclusion. Since the country was coming out of the Depression and soon entered WWII, people readily accepted these changes. What resulted is exactly what the Founders always feared, the centralization of power in the Federal government.

  • perlchpr||

    I'm not convinced the NFA had anything at all to do with crime, and not to do with the fact that Prohibition was over, and by gum, they had all those agents sitting around doing nothing.

  • Clayton Cramer||

    It was certainly the case that without the gangsters NFA would never have been passed.

  • Bruce D||

    ATF All the prohibition agents became gun-control agents and "revenooers".

  • Naaman Brown||

    Actually the MSRP of the 1921 Thompson Submachine Gun was $200 half the cost of a Ford car.
    It could be bought at some local hardware stores, but basically, though, between 1919 and 1939, less than 19,000 "tommy guns" had been built, and nearly 5,000 unsold at the start of WWII in Europe 1939.
    As far as 1920s and 1930s crime goes, Al Capone just put on the streets the offer to pay $3000 each and let market forces work.
    Dillinger got tommy guns from Illinois police stations.
    Ma Barker and sons bought stolen military tommy guns from fences.
    Bonnie and Cyde never used tommy guns: they stole BARs from national guard armories.
    The wife of "Machine Gun Kelly" bough him a tommy gun from a hardware store.

    The restrictions imposed by the 1934 NFA on legal machine guns was mostly symbolism. A show of doing something for a frightened public.

  • Whorton||

    Of course, it is worth repeating.

    The NFA did not BAN anything. It merely put a few hoops and a tax in place to own such weapons.

  • Jerry B.||

    "It is the person, not the gun, who determines whether use of the gun is offensive or defensive."

    So simple to state, yet so hard for many to understand.

  • TxJack 112||

    You cannot argue with people determined not to listen to any point of view other than their own.

  • TxJack 112||

    Progressives wish to ban guns not because of a "gun violence" issue, but because they know the only way to establish a strong, intrusive central government they must eliminate the ability of the people to respond. On another website in an article, the author attempted to claim the Midwest is ready to embrace socialism using facts about the response to unions and other social movements in the 30s, 40s, and 50s. Of course, the author totally ignored the fact those people had just lived through the Great Depression as well as WWII. My point is the one consistent trait of all progressives is the misstating of facts and use of alternative reality to support stripping us of our rights. They want to limit speech by declaring anything said they do not like as "hate speech". They want to strip us of the right to self defense by calling it "reasonable gun control" and demand everyone accept their vision for the country or face punishment. In short, they want to create the very world Orwell described in 1984.

  • California Right To Carry||

    In Heller II, Judge Kavanaugh said "No concealed carry for you."

    "As to regulations on the sale, possession, or use of guns, Heller similarly said the government may continue to impose regulations that are traditional, "longstanding" regulations in the United States… In McDonald, the Court reiterated that "longstanding regulatory measures" are permissible… Importantly, the Heller Court listed several examples of such longstanding (and therefore constitutionally permissible) regulations, such as laws against concealed carry..." – Judge Kavanaugh (dissent)

    Unlike certain NRA, CRPA, SAF, CalGuns.nuts, etc., lawyers, Judge Kavanaugh knows that when the Heller decision said that Open Carry is the right guaranteed by the Constitution and that concealed carry is not a right and can be prohibited, that doesn't mean that Open Carry can be banned in favor of concealed carry.

    And by "certain,,,lawyers," I mean all of them.

  • Clayton Cramer||

    There's a path to freedom, and it is the reverse of how the gun control movement largely achieved their ends. A number of states no longer require concealed carry licenses. This path involved shall-issue in progressively more rational forms. Californians have two paths forward right now: shall issue or moving to the U.S.

  • Granus||

    Dave Kopel's assessment, "Judge Kavanaugh's text, history, and tradition methodology for Second Amendment cases will not please people who believe that all gun control is impermissible, nor will it please advocates who want to make the Second Amendment a second-class right." is high praise and acceptable. The constant tension between the absolutes of exclusive government control by fiat on one hand, e.g. dictators, et al, or complete free-range unrestrained rambling about on the other, e.g. anarchy, in the spheres of free speech, freedom of assembly, freedom of religion, and others is what gives rise to "consent of the people" and subsequent laws that moderate the tensions between the extremes. The right to bear arms and gun control are no different. Judge Kavanaugh's approach seems a satisfactory approach - informed and reasonable, that moderates the two extremes keeping within the provisions of the Constitution.

  • Stephen Lathrop||

    This so-called "history and tradition" test outright usurps core powers that political branches, not the courts, ought to exercise. If something new appears in the world, it isn't up to a judge to decide it is analogous to something traditional, and on that basis declare it isn't new after all. Still less should the judge do that if the legislature disagrees.

    Novelty is not recognized by analogy, it is recognized by experience. Judges are not equipped—as legislators are—to probe the public perception of novelty vs. tradition—nor to measure new effects against old ones—nor, most important, to weigh public impacts as experienced by the people, and reported to their political representatives. Judges don't get that feedback.

    On the basis of a Court enshrining by its own lights "tradition," as if it were law, legislators' necessary power to adjust law to ongoing change can be discounted nearly to zero. Add unchecked freedom to make up from the bench any purported historical account whatever, without accountability of any kind for the truth of the account, and the notion of tradition as law can be seen for the startlingly broad, unchecked veto of legislative power it actually is.

  • Absaroka||

    "If something new appears in the world, it isn't up to a judge to decide it is analogous to something traditional, and on that basis declare it isn't new after all. Still less should the judge do that if the legislature disagrees."

    So when congress in its infinite wisdom decides that freedom of the press only applies to types of printing presses that existed in 177X, the NYT must stop using modern press machinery, and of course shut down its online edition. Not sure that interpretation is going to attract a lot of support.

  • Sebastian Cremmington||

    So with respect to "bear" in the 2A do you toss aside tradition and history?? If a movement is necessary to make concealed carry legal even in the reddest states in the 1990s certainly that means tradition and history are on the side of states with prohibitions on concealed carry??

  • Clayton Cramer||

    Look at the logic in Loving (1967). The Court struck down Virginia's interracial marriage ban because the direction of motion of the state legislatures was away from those laws, which had never been a majority of states.

  • ||

    Most gun laws in places like NY, NJ, CA, MD, and DC would fail if analyzed by the courts in good faith. This is true whether the courts use strict scrutiny, intermediate scrutiny, or the review advocated by Kavanagh.

    There's no good faith way to rule, for example, that the "bear" in "keep and bear arms" can be denied to everyone without a reason a bureaucrat finds "good and substantial."

    There's also no good faith way to rule, as another example, that a ban on rifles with collapsible stocks and bayonet lugs is Constitutional because those guns are often used in mass shootings.

  • Naaman Brown||

    IIRC the last couple of mass shootings were done with shotguns.

    Five years into the 1994 Assault Weapon Ban, the Columbine killings were mostly with a pistol caliber carbine with a solid fixed stock, no bayonet lug, and 10 round magazines, and a couple of sawed-off shotguns (banned in 1934 by the NFA and unprotected by the 1939 Miller decision). The fearsome looking TEC9 actually wasn't used that much in that crime.

    Crime involves an actor with motive and intent, exploiting opportunities, and utiliizing means. Means is the last thing in the equation, and lack of one means usually results in substitution of another.

    We can devote our resources to identifying bad actors and denying them opportunity to act, but apparently some people believe banning things will stop bad people from doing bad things.

  • ||

    Exactly. Allowing a ban on rifles with certain cosmetic features because they're often used in mass shootings is like banning F150s because they're often the cars used by drunk drivers. It's solely because of the relative popularity of them, and nothing more.

    And as you said, 12 gauge shotguns are plenty deadly.

  • TeeJaw||

    I'd like to see a judge say that the potential efficacy in reducing gun violence should be a test for the Constitutionality of any gun control law. If that were the case I believe there is only one gun control law that would stand the test. That is the law that enhances sentences for use of a firearm in committing a crime.

    All the rest, all those on the books today, would fail that test because they only restrict law-abiding citizens and do nothing at all to reduce gun violence by criminals. It is insane to believe that restricting peaceful citizens will reduce criminal gun violence.

  • sparkstable||

    While I appreciate the outcome of the judge's reasoning, it is self-described as inconsistent. Amd inconsistency is an antithesis to justice.

    He says on one had that traditional laws are OK but new ones are not, essentially. That implies there can be no new laws, even if the new ones are to replace unjust ones.

    Then he says, (paraphrasing) "Yeah... I know what I said earlier doesn't really stand up too well so I'm going to admit here that the government can sometimes make new laws."

    Then he says lower courts are bound by duty to uphold previous SC rulings. What of those rulings are wrong or unjust?

    This is the problem with a legal tradition rather than an ethical justice-based tradition. We end up in Gordian knots over this law and that interest and this desire and that plaintiff. None of that matters if the question is "What rights do people have and does this law, in any way, infringe upon them without first adjudicating the person before us as guilty of a crime?"

    The state's interest is irrelevant if anything to achieve that end violates a person's inherent rights. To argue otherwise by definition requires you to approve of a violent imposition on an innocent person, which under every other review we would conclude is wrong. But because some people in suits raise their hands and say, collectively, "Let's do it!" it somehow becomes legitimate? That's tyranny.

  • Clayton Cramer||

    "He says on one had that traditional laws are OK but new ones are not, essentially. " No, Scalia called existing laws presumptively constitutional. We'll eviscerate the stupid ones in a later decision.

  • sparkstable||

    I was referring to his ideology that a long standing and common type law would allow others to follow suit, while the creation of a new type of law, or one of a more stringent variety than has been the norm, would not be acceptable. In other words, and in reference to his logic on gun control, "You can pass gun control laws, just as long as they are like all the others... but you can't be the first to do it in a new way or on new types of guns." That doesn't make any sense. If it were true, then the very first gun laws would, by definition, be unconstitutional at the time of their passing and deserve to be struck down now, thereby creating a reality in which there are no gun laws. I mean... that's what SHOULD have happened, but not based on the twisted logic of the judge here. It should have been done on the logic that the Constitution says so, that I have a right to my body, labor, and by extension my property, and that before something I would naturally have a right to access in a free world is restricted, I as an individual need to be adjudicated as having committed a crime whereby the reduction of my access to that thing would be a just consequence... and doing such a thing should only be applicable to me as the single guilty person not passed on to a population as a whole who have a) not done the crime I did and/or b) have not yet been adjudicated as guilty of this crime.

  • Naaman Brown||

    What is worse is that gun laws only give the appearance of enhancing public safety, at the cost of sacrificing the rights of some and undermining the respect of others for law and order.

    Compare the rhetoric of alcohol prohibition, reefer madness, seduction of innocents by comic books, to the rhetoric of gun control. It's the same-old-same-old. Form over substance, voodoo criminology. Blame a scapegoat, shame its defenders and any who question the effectiveness of the scapegoating.

    However. Kavanaugh's ability to admit error is actually an admirable trait. 'A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines ...' - Ralph Waldo Emerson

  • ranrod||

    If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!

    In writing to William Jarvis, Jefferson said, "You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."

  • Sebastian Cremmington||

    Uh no, Stevens' Heller dissent relies on "text, history, and tradition". Scalia's majority had to rely on law review articles from a guy with a 206 IQ!! Seriously, why must a guy with a 206 IQ weigh in 200 years later with law articles about "text, history, and tradition"???? This is why these geniuses wasting their talent in the judicial branch is a HUGE misallocation of resources!! Here is an idea—overturn Roe v Wade and I guarantee you in 20 years cancer will be cured because geniuses will no longer have any desire to write the next opinion declaring a provision in the ACA a tax instead of a penalty!

  • Clayton Cramer||

    "Scalia's majority had to rely on law review articles from a guy with a 206 IQ!! " Where is the IQ listed in a law review?

  • John C. Randolph||

    The Court ordered D.C. to issue Dick Heller a carry permit.

    IMHO, the court screwed up there by letting the city usurp the power to "permit" a natural right. What they should have done is told the city that they have no such authority, and that free people can keep and bear arms.

    -jcr

  • Sebastian Cremmington||

    I agree, for guns in the home no registration should be necessary and I acknowledge that Giuliani greatly reduced the crime rate by enforcing laws that should be unConstitutional.

  • Bloving||

    Imagine that - a Justice who likely wont allow bigotry and prejudice to color his decisions...
    If we can all agree that:
    1. Self defense against any unlawful attack is a basic human right.
    2. That as a basic human right, self defense is and should always be considered a Civil Right of the People and thus the exercise of that right must be immune from restriction, infringement, licensing or taxation by Government at any level.
    3. That the Civil Rights of the People are not subject to the approval of the Majority Opinion and belong to every Individual regardless of their social status.
    4. That any infringement, restriction, licensing requirements or taxation levied on the free exercise of a Civil Right is a violation of that right.
    5. That any law, policy or rule that prohibits or discourages the free exercise of any Civil Right is an infringement on that right.
    6. That if a law, policy or rule that prohibits or discourages a Citizen from legally acquiring the tools, weapons or means to freely exercise their Civil Rights, then their rights have been infringed.
    -Then it follows that those who advocate for the preservation of the right of the People to keep and bear arms are, in fact, Civil Rights advocates. It also follows that those who oppose the right of the People to keep and bear arms are against the People's civil rights.
    We have a word for people who advocate for or try to use the force of law to infringe on the civil rights of others: we call them Bigots. 

  • sparkstable||

    Well put. The logic is quite clear.

  • ||

    There are no conflicts here.

  • Naaman Brown||

    I live a few miles from where the Overmountain Men militia men mustered to march against and defeat Gen Ferguson's force at King's Mountain in the Revolution. I have read and heard a lot about Colonial militia.

    The people who mustered for militia service brought with them their militia service weapon and ammunition to demonstrate that they were armed and equipped per militia regulations. Regulation equipment for militia service went beyond firearms and also included arms such as knives, tomahawks, sabers, and non-arms like rain gear, bed rolls, food sacks, water bags.

    Most militia men also had at home non-militia firearms for hunting, protecting livestock, etc. The militia regulations required possession of arms that met military standards. The militia regulations did not cover firearms for non-militia use. Importantly, militia regulations did not ban or prohibit deer rifles. fowling pieces, duck guns, rabbit guns, etc. owned by members of the militia and, more importantly the militia regulations did not ban ownership or use of military or civilian arms by the general population for traditionally lawful purposes.

    No restriction on possession or use of arms among the general population assured that, in times of emergency, there was a pool of citizens familiar with arms to call upon for volunteer service without the delay of training in firearms.

  • ||

    The weapons banned by the AWB are not dangerous and unusual.

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