A Judge Who Understands Firearms

Judge Stephen McGlynn of the Southern District of Illinois asks probing questions about the state’s new rifle ban.

The recently-passed Illinois ban on "assault weapons" and magazines has been subjected to several federal and state court challenges. I previously posted about an adverse decision from the Northern District of Illinois, in which the court appeared to have been seriously misled by the state's "experts" about the nature of the banned firearms.  Today I'd like to focus on the oral argument on motions for a preliminary injunction that recently took place before a judge whose electrifying questions and comments exhibited superior knowledge about firearms.

Oral argument on four challenges was held in Harrel v. Raoul on April 12, 2023, before Judge Stephen McGlynn of the U.S. District Court for the Southern District of Illinois.  Erin Murphy, counsel in Barnett v. Raoul, conducted the argument for the plaintiffs.  A preliminary injunction was sought not only by the plaintiffs, but also by the defendant local state's attorney and the sheriff.  Christopher Wells argued for the attorney general, the governor, and director of the Illinois State Police, in opposing injunctive relief.

Following the Supreme Court's decision last summer in the Bruen case, Ms. Murphy explained that "arms" include anything that constitutes bearable arms and all instruments that facilitate armed self-defense.  Thus, "a rifle, a pistol, a shotgun doesn't become any less of a bearable arm because it has a pistol grip or a thumbhole stock."  And under Heller and Bruen, the only "arms" that can be banned are those that are dangerous and unusual and therefore not in common use by law-abiding citizens.

Judge McGlynn agreed that "there's no question that AR platform rifles are commonly held, typically held" for self-defense.  But are there limits on how large magazine capacity may be such that it could be regulated?  There's no specific cutoff, Murphy responded, but magazines that are commonly possessed may not be banned.  Hundred-round drums are legal in many states, but are not commonly owned for self-defense.

It is not true, Murphy continued, that manufacturers can flood the market and render the common-use test meaningless.  In the 1920s, machine guns came on the market but were not in demand by citizens.  Gangsters misused them and they were banned.  (I would add that, as a practical matter, spending large marketing dollars on a product does not necessarily create demand for it or otherwise make it a success, as illustrated by the many big-budget Hollywood movies that have failed at the box office.)

Judge McGlynn commented that when the Bill of Rights was ratified, hand-held and shoulder weapons were common, but "they weren't the type of weapons that could … quickly cause the death of 20 people."  To Murphy's statement that the state must craft laws to keep arms away from those who would misuse them, the judge commented that "the state has many options, but one option is not taking away guns from law-abiding citizens."

While dictum in Heller referred to weapons like the M16 as most useful in military service but unusual in society, the court noted that "today presently standard issued to military personnel is a Mossberg shotgun, a 9-millimeter pistol, a .40 caliber pistol, so just the fact that military people might find it useful doesn't mean that law-abiding citizens can't also find it useful."

The fun begins with the argument of Mr. Wells on behalf of the state defendants.  As is typical for advocates of gun bans, he quickly changed the subject from AR-15s to nuclear missiles, tanks, and fighter jets, which are not bearable arms, and then to stinger and javelin missiles, which can be carried by a single individual.  As to the latter, the plaintiffs had noted that under Bruen, the burden shifts to the government.

At that point, Judge McGlynn interjected that those who adopted the Constitution thought that "you get to have arms, at least gives you a fighting chance if you were in a militia and we had to beat back the redcoats or somebody else," which "doesn't suggest that you can have a Red Ryder BB gun and that's good enough for you."  They "thought the people are going to have … a right to carry arms, that could have some relevant military use if they were pressed in the service in the militia?"

Wells dismissed that question and turned to self-defense, rhetorically asking "what do we know about handguns in particular from Heller?"  The court replied: "They have pistol grips."  That seemed to be a quip about one of the rifle feature bans.

Just as the length of a barrel may be regulated, such as on a short-barreled shotgun, Wells continued, so can magazine capacity.  Referring to the 1934 National Firearms Act, he added,

Thompson submachine guns were not the leading murder weapon of the day, and instead "other weapons" were.  He fails to identify these other weapons, but they were pistols and revolvers, which was first on the list of what NFA proponents wanted to restrict.  As I've detailed elsewhere, pistols and revolvers were deleted because they were in common use by law-abiding citizens.

The court asked whether the M16 is different than what's sold to civilians, to which Wells noted that "the main difference is automatic fire….M16 is select fire rifle."  Wells noted that the M16 was originally named the AR-15, but the army renamed it, "with that 'M' denomination for 'Military.'" The court responded: "For 'Military,' mm-hmm."  Judge McGlynn was aware that the "M" stands for "Model."

"So who gets to choose what weapon a law-abiding citizen selects to defend themselves?" asked the court.  Wells responded that when machine guns were outlawed, the market didn't get to determine whether they were protected by the Second Amendment, the government made that decision.  But Ms. Murphy had already refuted this argument – the American people did not choose machine guns, which thus did not come into common use.

Judge McGlynn brought the issue back to the earth by relating a YouTube video he viewed of a hypothetical scenario in which a man got an alert on his cell phone that his Ring camera detected four big, burly guys with masks on and guns at his front door.  He imagines that he's away on a trip and his wife calls saying, "Oh my God, there's men outside. I think they're going to attack. … I'm at the gun safe.  I can pull the pump action shotgun that has three rounds, … or I can pull the AR-15 and I can insert the five-round clip that's loaded or I can insert the 30-round clip that's loaded, or I should say magazine."

"Don't you say, grab the AR-15 and take the 30-round magazine because there's four of them and the shotgun, … there's only three rounds in it, honey, and you're going to be panicked and you can't assume that every shot you get off is going to be a lethal shot at first.

"Who gets to decide – does the government get to say, no, ma'am, I'm sorry, you got to go with … the shotgun that has only three rounds in it. … You may not be used to how to load it, but God speed."

Apparently baffled by the judge's hypothetical, Wells could only respond that we regulate many things that are dangerous or can cause harm, such as baby cribs (!).  The court: "Baby cribs are not specifically protected by the Constitution." Wells replied that in surveys, 66% of the people chose handguns, shotguns were second, and "only 13 percent rifles."

 

The court posed the scenario of a guy taking his wife and teenage daughter to a firing range.  He has them fire a five-round, pump shotgun.  "I don't like it, Dad. … [B]ecause of the significant recoil. And it's loud. I'm afraid of this thing."  They then fire an AR-15.  "This, I like better. … It's not as heavy. It doesn't have the recoil."  And it has a green or red aiming device.  Question: "Does she get the right to make that choice? Or do I say, survey says, your best bet is this shotgun?"

Wells responded that "the legislature is entitled to make the choice that in the aggregate, the amount of harm …."  The court interrupted, asking whether that was an infringement on the right to bear arms.  Wells denied that it is, adding that "in realtime across the board, 87 percent of people are choosing a shotgun or handgun."  But given the 2.5 million annual uses of a firearm for home protection, the court rejoined, that left many thousands using "these kind of guns for self-defense in their home."

Next, things got kind of personal.  Judge McGlynn asked what is the turnaround time to get a concealed carry permit once it is filed, complaining: "Mine's been pending since September."  He wanted to know whether the state was slow-walking permit applications "because they just don't want people having guns?"  Wells claimed that he wasn't aware of that.

Next Mr. Wells sought to justify the banned features.  A flash suppressor, he erroneously claimed, stabilizes the firearm during rapid fire and prevents flash blindness.  "Or during period of a single fire," interjected the court.  "So if someone's being attacked in their home, it's night, and they fire their gun and it has a flash suppressor, it reduces the amount of interference with their vision from the flash, does it not?"  "So yes, Your Honor."

Those who are elderly or have disabilities like Parkinson's may be shaky holding a pistol with one hand, but more stable and safer with a rifle with a pistol grip.  And the thumb hole stock "doesn't make the bullets any more lethal. It doesn't make the gunfire any faster, but it makes it easier for the user to aim it and control the weapon, does it not?"  Similar for the arm brace. In sum, "it looks like all kinds of safety features are made illegal by this statute in an effort to make every possible gun that's out there … get you tripped up on it."

Instead of let them eat cake, Wells responded, let them use handguns like police carry.  But these police officers have passed their fitness training, countered the court, "what about the 82-year-old lawful citizen trying to save himself at his home?"  The specific features are banned, was the reply, because they facilitate "sustained accuracy during periods of rapid fire and concealability." But the reality is that the features facilitate accurate fire by taking the time to aim carefully.  And there is nothing concealable about a rifle just because its stock is adjustable by maybe three inches.

Regarding the use of so-called "assault weapons" in crime, the court noted that the Illinois Gun Trafficking Information Act requires the state police to detail information related to firearms used in the commission of crimes, but the state maintains that such information is unattainable.  "Why would I go out on a limb on somebody's constitutional rights," and "take Illinois's word for it," regarding firearms about which the relevant data is unattainable?  It's the firearm industry's fault, replied Wells.

"Well, how are you able to tell me, people aren't using these guns in self-defense or they're not worthwhile in self-defense or there's not enough elderly people or people with disabilities having tried to defend themselves with arms that they can't handle?"  Another unanswerable question from the court.

Let's not forget the telescoping shoulder stock.  "Dad is 6'3", Mom is 5'1", … doesn't it make sense for them to have adjustable stocks, so that more than one person can use it comfortably and the more comfortable they are, the more likely they are to be accurate in shooting?"  Wells agreed that "there are certainly benefits to an adjustable stock," but didn't offer any reason for banning it.

The judge volunteered that, in 1963, Lee Harvey Oswald used a $19, Italian Carcano bolt-action rifle with a scope and six-round magazine, at a moving target 100 yards away, to assassinate President Kennedy.  What if he had decided to remain on the 6th floor of the school book depository, the court asked, "to keep firing until they take me out, every minute if every third shot was a kill shot, every second shot was a serious wound and every third shot was a miss, in a minute and a half he's killed eight people with a gun that is perfectly legal under this law."

Wells asked how often that was happening, but conceded that mass shootings have been perpetrated with guns that were legal.

The court next turned to the existence of "lawful gun owners who have committed no crimes, who never threatened anybody, who have a long history of owning firearms and never doing anything wrong facing a class three felony and you and I know what that means. Two to five years."  Wells responded with the lame excuses that the law "requires knowledge" and that "we have prosecutors who are imbued with discretion."

But there may be hope outside of the woke Chicagoland parts of Illinois, as the following colloquy reveals:

The Court: Some of them [prosecutors] don't want to enforce this.

Mr. Wells: You're right. Some of them are suing us.

The Court: Sheriffs don't like it either apparently.

Mr. Wells: Sheriffs don't like it.

The exciting dialogue petered out after that.  Wells worried that, if the ban is declared unconstitutional, persons convicted under the 1994 federal ban "are now going to be released?"  Perish the thought.

Ms. Murphy had a few minutes left for rebuttal, but she summed it up best in one sentence: "The State seems to want to litigate this case as if Bruen never happened."

Judge McGlynn thanked counsel for their excellent briefing but offered the closing comment that from where he and other judges sit, "we have to start looking at not just the guns, but why we have all these troubled teens and young people going through mental health crises. What medicines are they taking? What red flags are we seeing and why are they being allowed to come into school?"  They need to be identified and prohibited from access to weapons, but: "Nothing like that is in this bill."

Comments

[Kleppe]

Thank you for sharing a link to the transcript of the oral arguments. Is the audio recording available anywhere online? I looked around the district court's page (as well as searching with Google) but couldn't locate it.

[Noscitur a sociis]

District courts don't typically release (indeed, in many cases don't maintain) audio recordings of hearings.

[arch1]

I am neither a lawyer nor a firearms expert but I still think I have reason to doubt this judge’s – well, judgement. That’s because he seems to think the YouTube four-burly-armed-guys hypothetical to be just the ticket as a basis for considering the gun legislation restrictions at issue.

Here’s a hypothetical for Judge McGlynn: If you’re a judge trying to take a reasoned, utilitarian perspective on the contours of firearms regulation, would it be better to ask about the likely effects of this or that provision on society as a whole, or instead in a specific, extreme, emotion-laden scenario obviously cherry-picked so as to produce a particular answer?

Take your time, judge.

[santamonica811]

My thought was, if you accept the judge's reasoning, "Hey, what if you have a 30-round magazine, but Ring shows 31 burly hoodlums at your door at 3:00 am? What will your poor wife/girlfriend/daughter do?" Great argument...guess we should allow 100-round magazines, just in case.

(Of course, what if it's Purge Night, and 103 rapists/murderers show up? Don't want to be stuck with only 100 rounds available at any one time. Guess we need those hand granades or napalm. Again, just in case.)

The fact that Halbrook was impressed by the judge's reasoning is not the tiniest bit persuasive.

[Brett Bellmore]

That would be a marginally better argument if gun controllers weren't continually trying to push the legal magazine size down.

But, really, the whole "Let's restrict what the law abiding can to to mildly inconvenience the small minority who are criminals!" genre leaves me cold.

No, let's not. Seriously, screw that.

[gVOR08]

What if the four burly guys have AR-15s? Surely this poor wife should be allowed, encouraged even, to have a belt fed 50 caliber machine gun. What if the husband or boyfriend is home, he fires a warning shot, wounding one of the guys as they break through the door. They turn out to be cops and they empty their magazines wounding him and killing her? Wouldn't they have been better off without a gun?

My point being that you can make up hypotheticals to support any argument, any argument at all, even standing in the Texas mifepristone case. And that second scenario isn't a made up hypothetical, it's the Breonna Taylor killing.

[Bruce Hayden]

They very likely won’t. Why? Because AR-15s are not very concealable. And because of that, they are almost exclusively (excluding those very rare copy cat school shootings) used defensively. If someone uses one offensively, and someone dies, they don’t really have a defense against 1st Degree Murder, since their bringing the AR-15 shows premeditation.

[Lee Moore]

4 burly hoodlums can fit in one car and so is a plausible attacking force.

31 would be a very tight fit, even with very small hoodlums.

[gVOR08]

It's a 31 man Insane Clown Posse in a clown car. Hey, as long as we're just making stuff up.

[santamonica811]

They took 31 separate cars. (Except here in California, where they carpooled, to take advantage of the HOV freeway lanes, in order to avoid our notoriously-bad Purge Night traffic jams.)

[Michael P]

What if 30 to 50 feral hogs suddenly rush into your yard within three to five minutes while your children are playing there?

[Bruce Hayden]

I think that I would want something heavier than 5.56/.223 for the big ones. Plenty of alternatives available in an AR-15, or, if necessary, an AR-10.

[santamonica811]

Michael,
Yeah, right. Like that's going to happen to my kids for a second time this month.

[Kazinski]

Well if you got 31 hoodlums and only 30 rounds then you hope at least 2 of them line up when you shoot and you take them both out.

You might also hope you can hold them off long enough with 30 rounds, that the police or neighbors can come to your aid.

When seconds count the police are minutes away, so you have to hold the bad guys off for a few minutes.

[MaverickNH]

Indeed, one could consider the benefit of restrictive gun laws to society as a whole over the benefit to any particular individual, any 10 individuals, any 100 individuals, or any and all individuals. When curtailment of civil rights disadvantages individuals in society, how can society as a whole benefit? Only when those desiring more restrictive gun laws assume those laws lead to some greater good for society than any individuals.

That crime dropped over the decades that saw growth on ownership of AR15s and high-capacity magazine doesn’t comport with correlating ownership of such firearms/accessories with a decline in societal benefit.

[hoppy025]

Public mass shootings are "extreme" and "emotion-laden" scenarios as well.

The fact remains, the people screaming about ARs haven't put forth any evidence that a crazed killer couldn't do the same thing in a school with a Glock 17 and a few normal 17 round magazines.

They also haven't put forth any evidence that the time it takes to reload serves as any real impediment.

[Frank Drackman]

That A-hole German Airline pilot killed 150 just by locking the Captain out of the cockpit.

[hoppy025]

Or the Saudi terrorists on 9/11...

[DonP]

Or in the case of Virginia Tech, 2 handguns, one a .22 with a 10 round magazine managed to kill 33 people.

Also noteworthy, the recent Nashville school shooting ... equals the average Chicago weekend death toll.

Funny how that never seems to make the national evening news. Even in Chicago it's reported at the same level of intensity, maybe less, than the Cubs box scores.

[JasonT20]

Or in the case of Virginia Tech, 2 handguns, one a .22 with a 10 round magazine managed to kill 33 people.

You conveniently didn't mention that the other handgun was a 9mm Glock 19 with 15-round magazines. Funny how you didn't mention that.

[Jazzizhep]

Why would he need to? 9mm Luger is the most popular caliber in the US and 15 round capacity is standard on many 9mm. Do you think a Glock is so much more deadly than a Sig to facilitate the need for you to point it out? He said two handguns.

[Bruce Hayden]

Agreed. When caliber and magazine size aren't pointed out, I generally assume a 9mm semiautomatic, with a standard sized 15-17 round magazine.

[Carl_N_Brown]

The Virginia Tech murderer killed 34 people and carried a pistol with 15 round magazines and a pistol with 10 round magazines.

[CFred]

Wouldn't it be better for society as a whole if uneducated or I'll informed people weren't allowed to vote?
Wouldn't it be better for society as a whole if military personnel could be housed in local residences rather than the services having to rent or reimburse off base housing?
Wouldn't it be better for society as a whole if trials could be expected by skipping jury selection?

[Harvey Mosley]

A hoplophobe complaining because someone used a reasonable hypothetical against a gun control argument? Really? What's your take on "blood in the streets!", "it will be the Wild West on every street corner!", "compromise", "reasonable gun laws", "military grade weapons", "common sense", "if it saves one life!" or my favorite, "think of the children!"

[BadLib]

This seems like a rather common "line drawing" hypothetical question.

There certainly are cases of multiple home invaders, sometimes having picked the wrong home, attacking the lone resident and sometimes killing them.

Is your objection to "four", "burly", "masked", and/or "armed" intruders? Clearly many home invasions have occurred with most combinations of two of these attributes - so where is the line and how do you find it without probing?

[Gandydancer]

Not only are you not a lawyer nor a firearms expert, you’re a tendentious bullshitter. The issue is how quickly your defensive firearm becomes a near-useless club if every shot you shoot has to result in a disabling hit because you are restricted to a paucity of rounds, and that is true when there is only ONE attacker.

[Brett Bellmore]

“It is not true, Murphy continued, that manufacturers can flood the market and render the common-use test meaningless. ”

But it is true that, if the Supreme court decides for nearly 70 years that it’s just not going to take 2nd amendment cases, the government can warp the market with bans, and render the common-use test meaninglessly circular: “What is banned can’t end up in common use, and therefore can be banned!”

So you need a better touchstone than “do a lot of people own it?”, though that can be a quick first pass.

"Gangsters misused them and they were banned."

In fact, they were NOT banned in the 20's. Or the 30's, 40's, 50's, 60's, or 70's. Not until the 80's, actually. They were just heavily taxed, which made them expensive enough they never became popular.

And, why were they just heavily taxed? Because the government at the time actually thought that it could not constitutionally ban them! Indeed, the Court that upheld that tax did so on the basis that it WAS a tax, and not an unconstitutional ban.

[Aubrey LaVentana]

" the Court that upheld that tax did so on the basis that it WAS a tax, and not an unconstitutional ban"

A saving construction?

[Mr. Bumble]

Sure as with CJ Roberts save of Obamacare.

[Brett Bellmore]

Actually, Roberts was a lot worse; The Court that upheld the NFA said, essentially, that if Congress called an act a tax, and it was capable of yielding any revenue at all, the Court would not presume to declare it a penalty.

Roberts was faced with an act where Congress had come right out and said it was a penalty, and ruled that Congress had been lying!

[Stephen Lathrop]

the state has many options, but one option is not taking away guns from law-abiding citizens.

With regard to gun policy hypotheticals, the state has many options, but to choose a question-begging, reality-denying example is not one of them. If gun policy cannot be made except on a court-imposed presumption (law-abiding) that the policy is not needed, then the court only pretends to consider the case.

[Brett Bellmore]

Your preference is the court only pretending that the Constitution has a 2nd amendment, I take it?

[Stephen Lathrop]

Your preference is to assert that the 2A demands logical fallacies in judicial reasoning?

[Brett Bellmore]

The assumption that the policy is not needed isn't the court's, Stephen. It's the Constitution's.

By enacting the 2nd amendment, we took that option away from lawmakers. If they want it back, I direct their attention to Article V.

[Bruce Hayden]

What you term logical fallacies are no more than what the Bruen Court required of a fundamental, enumerated right, guaranteed under the 2nd Amdt. They required Strict Scrutiny, based on original intent, as understood through legislation prior to the adoption of the 2nd Amdt in 1791, and the 14th Amdt in 1867.

[Stephen Lathrop]

Hayden, this is kind of a hoot. Bellmore is wrong. The 2A does not require logical fallacies. But Bruen absolutely does require them. Which is one of several reasons why it is going to go down in history as one of the worst-reasoned decisions ever.

[Joe_dallas]

Stephen Lathrop 32 mins ago
Flag Comment Mute User
Hayden, this is kind of a hoot. Bellmore is wrong. The 2A does not require logical fallacies"

Logical fallacies such as the historical record that the right to keep and bear arms was "limited" to only when serving in the militia? Which is effectively what Stevens wrote in his Heller based on the supposed historical record. Yet I have yet to see any of those "professional " historians provide any historical record that would support any such limitation. perhaps you knowledge of history could provide such

[Stephen Lathrop]

Joe_dallas, it took awhile, but after Stevens and others pointed out the historical fallacies in Heller, the gun industry did come up with that other historically fallacious puppy you like to take out for a walk so often.

Historical reasoning is not about drawing inferences from absences. When someone insists on some kind of connection, or to be more pointed about it, some relevant survival from the past to give context for an inference, it is never an insistence that something be produced to show something for which there is no record at all.

As a matter of historical inference, if the 2A is correctly inferred to be about a militia purpose, that does nothing to establish an ability to interpret it as being for any other purpose. And historical reasoning standards do not permit you to invert that, to insist that unless it did say it wasn't for that other purpose, it must have been. That is not good historical reasoning, because if it were, there is absolutely nothing about the past which could not be proved (or disproved) using it. It is meaningless.

The sources who encouraged you to argue that way have their own agenda, but you don't need to fall for a nonsensical style of argument even if you agree with the agenda.

[Joe_dallas]

Stephen Lathrop 44 mins ago
Flag Comment Mute User
Lanthrop's comment - Historical reasoning is not about drawing inferences from absences."

Thats what Stevens did - he essentially claimed the historical record limited the right to keep and bear arms only to times when serving in the militia. Stevens drew that inference when there was no historical record supporting that inference.

[Joe_dallas]

Stephen Lathrop 4 hours ago
Flag Comment Mute User
"Historical reasoning is not about drawing inferences from absences."

Not drawing inferences for absences is exactly my point. Completely absent for the historical record is any discussion of limiting the right to keep and bearing arms to only when serving in the militia.

[Stephen Lathrop]

Completely absent for the historical record is any discussion of limiting the right to keep and bearing arms to only when serving in the militia.

Right! Exactly! Self-defense with a gun was never discussed at all, in any historical context related to the 2A. Which is why you cannot assert about the past that there was evidence for a 2A right to bear arms for any purpose except serving in a militia, which was discussed and recorded.

Why is that so hard to understand? I think for most gun advocates it is hard to understand, because they are keenly aware—however hazily informed—that some kind of right to self defense existed, however supported, in at least some places during the founding era. And they do not recognize that it is making up history to answer the, "however," question by saying it was the 2A, despite the complete absence of evidence for that you acknowledge.

[Kazinski]

The Supreme Court did not require Strict Scrutiny, they said straight out there is no interest balancing under any level of scrutiny.

There is no government interest "compelling" enough to.allow the government to do what is already forbidden to the government.

The test is only the "text as informed by history", there is no second step of trying to figure out how important the governments goal is.

[Stephen Lathrop]

If you are talking about Bruen, then I think you describe it pretty accurately. Of course, to reason that way throws separation of powers out the window. Congress is the branch tasked by the People to figure out how important the government's goals are.

[Bruce Hayden]

You are entitled to your own opinion, but to convince anyone else, you will need to offer a more expansive explanation. Are you suggesting that Strict Scrutiny isn’t appropriate for this fundamental, enumerated right? That Strict Scrutiny is being misapplied? That more evidence should be available to courts about the intent of those drafting the 2nd and 14th Amdts?

[Stephen Lathrop]

Hayden, none of the above. Scrutiny levels had little if anything to do with why Heller went wrong, even if Scalia thought he applied strict scrutiny by making up history. Scalia demonstrated convincingly he was not even aware that you need intellectual standards to keep historical analysis from going off the rails. Scalia thought God, a legal education, growing up in 20th century America, and an ability to read English was all he needed. He was wrong.

Unsurprisingly, none of those factors taught Scalia that you cannot determine a context for a historical text created on date X, by use of examples from date X + 20 years—usually not even examples from date X + 20 days. Scalia did not apparently know that it is nonsense to insist that standards used over here, in a different context, are proof that things were the same over there, in an original context.

The methods Scalia used in Heller could be argued to prove anything at all, for any history at all. Or to disprove the same. That is how you know Scalia served up mostly empty fabrications. He was not equipped to do anything else.

It may surprise you to learn this, but thinking about the past is an entirely different activity than thinking about the present, or thinking about the future. That is true because unlike the present era, or the future era, the past has actually happened. Although most of the past has been forgotten, none of it will ever change.

So to access the past you need something akin to an intellectual time machine, but not just any time machine. Literary time travel is content with time machines capable to serve up fantasy. Historical time machines have to get the past right, and avoid fantasy. Those are hard to come by. Scalia didn't even know he needed one, let alone understand how one would work if he had it.

Because the future has yet to happen, you can apply any amount of fantasy at all without risk of being wrong now. Try that with historical analysis and you will be nothing but wrong now. That was Scalia in a nutshell.

[JasonT20]

Judge McGlynn agreed that "there's no question that AR platform rifles are commonly held, typically held" for self-defense.

Uh, no question? I question that assumption. This ad wasn't playing up the AR-15's utility for self defense. There's "no question" that the popularity of the AR-15 includes the simple fact that it is the same basic platform that U.S. military branches have used for several decades, making it a "cool" thing to have and imagine fighting evil-doers from around the world.

[Absaroka]

Roughly speaking, how many AR owners do you know? I ask because I know quite a few and they seem like regular people to me.

I get that actual examples of your stereotype exist, but they seem pretty rare in my experience. Perhaps we just have different circles of friends and many or yours fit that mold?

"the popularity of the AR-15 includes the simple fact that it is the same basic platform that U.S. military branches have used for several decades, making it" ... one that vets are familiar with, is well debugged, easy to repair, and so forth?

People buy Toyota Camrys for a reason.

[Stephen Lathrop]

I get that actual examples of your stereotype exist, but they seem pretty rare in my experience.

Absaroka, your experience must be powerless to explain the themes of advertising campaigns for AR-style weapons. Those seem predicated on the notion that selling guns as testosterone boosters is a theme to draw a considerable audience.

Have you noticed the general absence of masculinity themes in Toyota Camry ads?

[Brett Bellmore]

Stephen, they also sell trucks with videos of people driving up the sides of mountains or across rivers, and then those trucks get driven by suburban mothers on paved roads.

Strangely, the advertising doesn't force those women to ford rivers, or cause the trucks to malfunction if driven on pavement.

Gun controllers really live in a demon haunted world, where advertising campaigns cast curses on products, where inanimate objects have "purposes" that override the intent of the owners. They are, to put it simply, nutcases.

[Stephen Lathrop]

Bellmore, like everyone else who thinks he sees right through advertising, you are a sucker. All it means when you conclude other people are pretty stupid to be fooled by advertising is that in that instance you were not in the demographic being targeted.

You prove that every day with your comments here. Vendors of conspiracy theories lick their chops when they see you coming.

[MeanGene]

What is the importation of questions about "masculinity" into a debate about the constitutionality of gun laws but another kind of "conspiracy theory"? The idea that the manufacturers of rifles "flooded" the market is another conspiracy theory, isn't it?

[Stephen Lathrop]

MeanGene, marketing of AR-style rifles was for so many years loaded up with textual and graphical invocations of masculinity that the question cannot reasonably be in doubt. It is possible that overt recognition of those themes was unavailable to members of the targeted demographic.

Whatever the product may be, that is usually how advertising and product designs are intended to work. There is a targeted demographic with pushable buttons. That group remains unaware, or even supposes it is becoming informed by marketing materials. The targeted demographic will be even more oblivious to cues built in by purposeful industrial design choices.

Everyone else sees it otherwise. The others generally think they see through the advertising and design cues. They think the targeted demographic are suckers, and feel pretty superior about it. But then it works just as well in the others’ cases, when they get targeted by advertising meticulously researched and designed to push their buttons.

An example to show what I am talking about could be found in Volvo advertising campaigns circa the 1990s. Those were loaded with invitations for reasoning people to scorn emotional others, and make their decisions instead on the basis of soundly supported evidence of safety and utility. So university graduates with advanced degrees watched TV ads showing Volvos being pushed off the top of a building, and sustaining remarkably little damage when they hit the pavement nose first. They may not even have noticed that downward acceleration did not really get going until the rear wheels got off the roof. The car probably wasn’t in free fall for much more than 15 feet. That apparently worked, because Cambridge and Boston were chockablock with Volvos.

Even though they could do it in their heads, many of those educated customers never did the math. The dramatic visual worked like sleight of hand. It distracted from any mathematical curiosity to compare the modest kinetic energy of the car when it hit the ground, to the energy of a crash into a bridge abutment at even minimal highway speed.

When it’s your turn in the barrel, it’s very hard not to get rolled. If you suppose you are an exception, that probably just means you are not a member of the targeted demographic.

One more example, from a design studio where I worked for years. A new designer got hired, right out of RISD. Hiring a novice was not commonplace, but she seemed graphically talented, and got the nod. The first week she got assigned to a labeling project, for supermarket pasta sauce. It was a store brand. When her impressive design got turned down, she was non-plussed; even more so when advised how to cheapen up the look of the label. Introduction of a few subtle graphical errors was suggested, maybe a little bit of slightly awkward spacing—not anything to draw focus, but just to dull any sheen of perfection.

Seeing her upset, a senior designer decided to give her a hand. He produced from somewhere an upscale label our firm had also designed, for a different product name. She brightened at that; it looked more like what she had created herself. Then the senior designer explained that the upscale product, and the store brand, were identical sauce, sold by the same company, to differently targeted demographics. To feel satisfied, those required different labeling styles, and different price points.

Store brand customers wanted products which looked inexpensive. Upscale customers wanted a presentation which bespoke lavish care. Neither group knew or cared that the price to produce the different labels barely differed. The upscale jar was slightly higher than the other.

My advice to all of you: if you ever see marketing-related media which make you feel especially comfortable, or to serve you with useful information, look out. Ask yourself what a person you know who seems to disapprove of you would think if they saw the same stuff. That person probably won’t be in the targeted demographic along with you.

[SimonP]

Stephen, they also sell trucks with videos of people driving up the sides of mountains or across rivers, and then those trucks get driven by suburban mothers on paved roads.

Yes - and then it's no surprise when these large vehicles cause serious body injuries to pedestrians and passengers of smaller cars, due to their higher mass and profile.

You just might be onto something - our society's failure to grapple with widespread gun violence is similar to our failure to grapple with widespread traffic violence.

[Toranth]

widespread traffic violence

I honestly can't tell - is this supposed to be a serious argument, or a side-splitting mockery of gun-grabber 'logic'?

[SimonP]

Tens of thousands of people die every year in traffic accidents. Tens of thousands of people die every year from gun violence. These are both potentially lethal instrumentalities that we've allowed to saturate our culture - and some are insisting that we treat all of these deaths and injuries as normal.

[Gandydancer]

hat sense are traffic accidents “not normal”?

[Toranth]

God, you're serious. That's even funnier!

Do you also talk about widespread cigarette violence? Alcohol violence? High-fructose corn-syrup violence and exercise violence? Cancer violence?

All causes of tens of thousands (or hundreds of thousands!) of deaths. Of course, sane people don't refer to them as "violence". Are you also in favor of common-sense car control?

[Stephen Lathrop]

Toranth, just stop. You want gun violence ignored. Say so forthrightly, and take what comes.

[Absaroka]

I dunno, Stephen. I googled 'AR-15 ads', and I got pages and pages of gun control groups making a big deal about that cringy 'man card' ad. But, again, in the real world, and the real people I know, that's not what is selling ARs.

I get that people are different. I know real world 'Friends Don't Let Friends Drive Fords' types that might actually care whether Ford or Chevy is winning in Nascar this year. Such people are not really common in my real world experience.

When police departments want to buy new police vehicles, do you think they look at Nascar results, or car ads, to pick the next cruiser? I don't think so. And I know officers who have been involved in their departments rifle selection process that have picked AR's, and they are 40 and 50 year olds, with long military and police experience. These are people who filled up their man card many years ago. They aren't making that decision based on ads. I know this because one slow day at the range I had a long chat about why they switched the SWAT team from MP-5s to ARs. There was a lot of experience behind that selection, and no part of it was based on advertising.

[Aubrey LaVentana]

"no part of it was based on advertising."

No part of their reasoning was based on filling out man cards either. Functionality, reliability, familiarity, and price. No yearning egos.

[Stephen Lathrop]

Absaroka, it has been more than 20 years since I picked up a copy of Guns and Ammo. I wish I had nickel for every comment I hear today which was contradicted by what I saw when I did read it. In the unlikely event you are not already familiar, find some back issues and take a look at them.

[Absaroka]

And again, your personal experience isn't the same as everyone else's.

Since you are into old AR ads, here is one.

[Bruce Hayden]

“Testosterone boosters”? Try distinguishing that from wanting to be armed as part of a well regulated militia.

[shawn_dude]

Let me know when we start to take the "well regulated" part of 2A seriously.

[Joe_dallas]

Well regulated refers to the right of the people to have militia's that are well regulated as opposed to a vigilantes militia.

the second right is the individual right to keep and bear arms.

[Bruce Hayden]

Not quite. Well Regulated, in 1791, meant well trained. Not well controlled by the government. And they could only be well regulated if they had available their militia weapons and practiced with them.

Keep in mind that in 1791, the country had just won their independence, to some extent through the actions of often non-state-approved militias. The militias that rallied to turn back the British attempt to disarm them, at Lexington and Concord, were by that time, illegal in the Commonwealth of Massachusetts (after the British Governor had taken over control of the colony). These local militias then went on to be the early nucleus of the Continental Army. Our first three Presidents were active in the pre-war militia movement, as well as in drafting the Declaration of Independence and Constitution.

[Joe_dallas]

Bruce - just to clarify. My point is that 2A protects the right of the people to form militia's for the common defense. Being a well regulated as opposed to a bunch of marauding vigilantes. Thus the purpose of the phrase "well regulated". I did not mean that "well regulated was meant to refer to "well regulated by the government" .

2A also protects the individual right of the people to keep and bear arms.

[JasonT20]

I’ve known at least one. My cousin has had a side business selling accessories, mostly for AR-15’s, for around 10 years. He started making custom builds with a partner a few years ago. I’ve been to a gun range with him many times. I own a couple firearms myself, though not a semiautomatic rifle at this time. I did have a Ruger Mini-14 ranch rifle for a while.

I’m hardly a gun enthusiast. I just say this to dispel any impression of me being totally against guns in general, or even that I would push to ban all “assault weapons” however defined. My cousin is a very safe and responsible gun owner, but the “fun” of shooting those weapons, the confidence and masculinity of owning guns, the idea of being armed in case of extreme need (revolution, breakdown of society, post apocalypse scenarios), and more likely self defense situations all are part of what motivates him to be what i sometimes see called “super owners” or something like that. Surveys and statistics seem to consistently show that guns, especially ones like ARs, are often concentrated among a few owners that have many weapons, rather than most of them being owned by people that have 1-3 guns strictly for self defense. I do not mean to imply that I think that the majority of owners of ARs are stereotypical “gun nuts”. However rare those kinds of people are in reality, there will definitely be many more that share their reasons for owning them to at least some extent, even if they aren’t fanatics and irresponsible.

This, my point is that I am highly skeptical of the statement from the judge that ARs and other semiautomatic rifles like them, are owned “typically” by people that had self defense as their primary reason to buy them. My experience and the marketing of these weapons is what gives me reason to doubt that. That the judge said that there was “no question” about it really does indicate bias, in my mind.

[Caphon]

People without direct experience or interest in firearms often never see that AR-15s have an almost Lego-like quality to them. They are highly modular and easy to work with - just fun things as objects. Given their light caliber, they are very easy shooters as well. Their popularity is obviously multi-faceted. There’s a network effect as well - as they’ve become more popular, more equipment is available for them and more general community knowledge is possessed. They are established as a “known good” option for recreational shooting, competitive shooting, and self defense.

[Gandydancer]

Your claims about AR-15s, even if true, do not indicate that it is atypical for AR-15s to be purchased for self defense. And the spikes in purchases after, e.g., the Floyd riots settle the question.

[JasonT20]

Gun sales spike for a lot of reasons. "Panic buying" is often a sign of fear and uncertainty of the moment. (Start of a pandemic, riots, people storming the certification of an election...heck, just electing a Democrat peacefully has gotten some people to rush to buy guns.) I don't think that "settles" the question. Especially as rifle and handgun manufacturing in the U.S. took off and increased steadily more than 10 years ago.

[Kazinski]

There are 15 million AR-15s in civilian hands in the US, even if there are a number of people that have 2-3, there are probably at least 10 million people that own an AR-15. Far too many to just stereotype them into your cousin or any other cubby hole you may have.

[iowatwo]

This ad wasn’t playing up the AR-15’s utility for self defense.
Advertisement are hardly evidence of anything but targeting of specific audiences. All the benefits and features are rarely featured in ads.
I am also confused as to the focus on self defense. The constitution makes no reference to self defense. The reality, the right to keep and bear arms precedes the Constitution.

popularity of the AR-15 includes the simple fact that it is the same basic platform that U.S. military branches have used for several decades,
And the Toyota in my garage is the same basic platform as a car running in the NASCAR series race, on Sunday.

[juris imprudent]

That's a funny ad given that 5.56 isn't the most MANLY of cartridges. I'd almost consider it a parody of the effete attack on gun owners and phallic symbolism.

[Bruce Hayden]

It doesn’t matter that some people buy AR-15s because they are attractive to wanna be soldiers. If selling to wanna be soldiers and militia members were a bad reason to buy AR-15s, it would be trumped by the many who buy the guns because they are good for self defense, esp defensively, in the home (and, yes, I fall into that category, with AR-15 type guns in both of my homes for just that reason). Strict Scrutiny requires just that.

But, of course, buying a gun for potential use in a militia of any type is not a bad reason to buy that sort of firearm. This is expressly negated by the prefatory clause to the 2nd Amdt: “A well regulated Militia, being necessary to the security of a free State, [the right of the people to keep and bear Arms, shall not be infringed]”. AR-15s are the quintessential militia weapon in this country, with every military veteran of the last 60 years having been trained in their use, and. sharing a manual of arms with the military M16 and M4, as well as sharing most parts.

[JasonT20]

Personally, I would not grab an AR-15 as a first choice to defend myself in my home, if I had one. The risk of over-penetration if I miss is a real concern for me. (I live in an apartment complex.) Since I have no training, maneuvering with a rifle seems like it would be more difficult than a handgun. It wouldn't be like I'd need the additional range, either. A 12-gauge pump seems like it could be useful as well. I could use one not quite as long as a rifle for some extra maneuverability and would have the advantage of higher hit probability. It is certainly quite intimidating.

[Absaroka]

FWIW, one of the reasons the SWAT team I mentioned swapped MP5's (9mm) for AR's in 5.56 was a desire to reduce overpenetration.

" Since I have no training, maneuvering with a rifle seems like it would be more difficult than a handgun."

It's easier to manuever a handgun, but it's a lot easier to hit the target with a long gun (thus minimizing overpenetration), especially with modest experience.

Just food for thought.

[ScottM1A]

Yep.

[Dan Schiavetta]

"Halbrook looked up the term 'bear arms' in an eighteenth century dictionary, discovered the definition included the phrase 'to bear arms in a coat', and concluded that the Second Amendment must protect the right to own a handgun because only that kind of firearm 'could fit in one’s coat pocket'. . . Mr. Halbrook does not recognize the term ‘coat of arms,’ a decidedly military form of heraldry presided over by the College of Arms.”

[Brett Bellmore]

Ok, that's one of the more stupid takes I've heard, in a genre known for stupid takes.

You might bear "a" coat of arms, because to bear is to carry, and you can carry a coat of arms.

But you can't carry something "in" a coat of arms, it's not a container.

The only sort of coat you can bear something "in" is the sort of coat you wear.

[Kazinski]

I have borne arms in a coat before, but I've never had a coat of arms. When you have several layers of clothing the outermost article of clothing, and the one with the largest pockets makes perfect sense to bear arms in.

On the other hand, A coat of arms is not a coat, and it makes no sense to refer to it as only as "a coat". It also makes somewhat more sense to refer to "on a coat of arms", not "in a coat". That seems like the kind of inexact language a dictionary writer would avoid.

In terms of everyday usage of English grammar Holbrook is right, in terms of someone not in the habit of reading things carefully and willing to stretch points for a gotcha you are on much more solid ground.

[Stephen Lathrop]

Note also, the judge who understands firearms did this:

The court posed the scenario of a guy taking his wife and teenage daughter to a firing range. He has them fire a five-round, pump shotgun. “I don’t like it, Dad. … [B]ecause of the significant recoil. And it’s loud. I’m afraid of this thing.” They then fire an AR-15. “This, I like better. … It’s not as heavy. It doesn’t have the recoil.”

There could hardly be a better hypothetical to illustrate the exceptional public danger created by an AR-style firearm. The, “teenage daughter,” in the hypothetical is doing the work to imply, “anyone at all.”

To get better insight, the judge who understands firearms must better understand his own hypothesis. Exceptional destructive power, packaged in a way to make it accessible and manageable by anyone at all, is the reason why AR-style weapons have become favorites of mass shooters.

The AR-style weapon delivers per-shot notably more destructive power than a .44 magnum pistol. The AR-style weapon delivers many more shots without pausing to reload. It is far more convenient to reload quickly. It can sustain a higher rate of aimed fire. Its ammunition weighs less, so a mass shooter can carry more of it.

Each of those conveniences multiplies the per-shot destructive advantage of the AR-style weapon. With the multiplications done successively, as they should be, compared to the .44 magnum pistol, the destructive product does not show a mere edge for the AR-style weapon, but instead shows a baleful multi-fold superiority.

That superiority can be quantified, by reference to three measures:

– First, the peak destructive energy which can be delivered to a target, for instance to penetrate police
body armor;

– Second, the aggregate amount of destructive energy which can be delivered to targets in a given time frame;

– Third, the length of time during which that destructive energy can be delivered by a typical shooter.

By all three measures, the AR-style weapon excels the .44 magnum pistol.

And anyone at all can use the AR-style weapon, with no more training than can be delivered in a gun store, across the counter, at the time of purchase. Neither any need for prowess, nor even a high price, stands in the way, if a typical minimum-wage nutcase wants to purchase immediate capacity to inflict mass death and mayhem.

The judge who understands firearms thus ignorantly extols as public virtues factors that when combined in the design of one weapon deliver disproportionate public danger. For some reason, a conclusion the judge who understands firearms apparently cannot understand, has become woefully apparent to even crazed would-be mass assassins. Which is yet another fact which the judge who understands firearms has not understood—or has chosen to ignore.

By the way, the .44 magnum pistol is a weapon which few people can control. Because of its weight and punishing recoil, few people buy it. Law enforcement experts have called the .44 magnum generally unsuitable even for trained police officers, because of its muzzle blast, and the punishing effects of recoil on the shooter’s wrist. With the massively more-powerful AR-style weapon, none of those problems apply, as the judge who understands firearms apparently does understand.

[Absaroka]

"And anyone at all can use the AR-style weapon"

It's interesting that you consider that a bug rather than a feature.

Personally, I think we should ban cars except those with unsynchronized manual transmissions, and manual spark advance like a Model T. The drunks would never get out of the bar parking lot. Making cars easy enough that anyone can use them leads to mayhem on the roads.

[MaverickNH]

“Exceptional destructive power, packaged in a way to make it accessible and manageable by anyone at all, is the reason why AR-style weapons have become favorites of mass shooters.”

Odd that a “weapon of choice” is used with a frequency of less than 2/3rds, less than a half, less than 1/3rd… “Favorites” are usually used more often, like “4 out of 5 dentists recommend Crest”. Why would the favorite weapon of mass shooters be used in only a small fraction of mass shootings? Just like makers of those toothpastes recommended at a low frequency by dentists, those who market gun control have to fabricate some reason to believe their claims despite evidence to the contrary.

Gun control advocates argue both ways, suggesting more gun owners with less training risks harm to innocents that might be shot by mistake, but that guns designed to more readily hit a chosen target are more dangerous by design. That only makes sense if you haven’t given up the premise that citizens should not own guns.

[DaveM]

“The judge .. extols as public virtues factors that when combined in the design of one weapon deliver disproportionate public danger.”

Disproportionate to what, exactly? Do you have some metric of danger that we could use to determine what would be proportionate? That could be useful.

[Stephen Lathrop]

Disproportionate to what, exactly? Do you have some metric of danger that we could use to determine what would be proportionate?

DaveM, Good questions.

Yes. But my standard cannot under present politics be considered realistic, even though it is entirely sound and consonant the with the 2A. My standard is: disproportionate to a lesser danger, which if implemented could still serve 2A purposes, including self-defense purposes (which I insist there is not historical basis for in the 2A itself, but for which I do not deny a need founded and protected otherwise).

My notion of the lesser danger would take the nation back to civilian arms standards generally prevailing circa the 1950s, before semi-auto everything: revolvers for pistols; bolt-action rifles, with non-detachable magazines; lever-action rifles, chambered for .30-30 or less powerful cartridges; shotguns of various types, but probably excluding the semi-autos.

But my standard would also take the militia clause seriously, and authorize access to even fully automatic guns, stored in guarded armories, and used under military-style discipline. That would justify exclusion from the civilian standard such semi-automatic weapons as had been commonplace from the Korean War era and earlier. I do not think having those in civilian hands did much harm in the past. I would be more cautious about tolerating them as replacements for AR-style weapons today, although the latter strike me as notably more dangerous to the public than the former.

I think the politics to make all that happen must await a practical demonstration that focus on arms types and capabilities can deliver amelioration of public danger. To accomplish that I suggest an urgent present focus on AR-style weapons, with the aim to show that their prohibition would reduce not mass shootings generally, but instead the one category with which they seem especially associated: mass slaughters in random public places.

My concern with AR-style weapons is three-fold actually. First, for the benefit of the relatively small proportion of victims now killed and injured in schools, theaters, churches, and similar venues. Second, as I mentioned, in the interest to show that management of gun types available publicly can improve public safety. But third, out of concern for what the future may hold politically, if uncontrolled proliferation of AR-style weapons multiplies their prevalence many-fold. I think peaceable assembly will become increasingly unrealistic, if armed intimidation at political gatherings is tolerated. It is already too frequent.

I do not come to this as an anti-gun advocate. Over the years I have owned at one time or another about 14 guns of various types and calibers. I have hunted extensively, and spent more time in the field hunting than most commenters on this blog can have done, except the few who also spent their energetic years in areas where hunting seasons stretched for many months every year.

But I am mindful and worried that gun culture standards I grew up with have changed drastically for the worse. I find much of the advocacy on this blog irresponsible, frightening, and even incompatible with personal capacity to manage guns safely.

[DaveM]

Thanks for the fuller explanation. Adopting a "circa 1950s" standard would be, as you say, an unrealistic expectation in today's political climate. For better or for worse, it's not possible to turn back the clock 75 years on technological improvements. That said, it's undeniable that the greater rates of fire gained by those improvements have had a very deadly effect.

For what my opinion is worth, I do not think you can stop this class of problem with a prohibition on supply. To solve this, you have to prohibit the user, not the usage.

[Stephen Lathrop]

If I prove mistaken in my projection of worse to come, then so much the better. If that projection proves accurate, I do not expect today's political climate to remain so opposed to more public-safety-oriented gun policies.

Whatever happens, I doubt any useful corrective can be achieved very much quicker than the time interval over which today's problems developed. I am more optimistic than you are that carefully chosen measures could deliver big changes slowly and incrementally.

[juris imprudent]

"The AR-style weapon delivers per-shot notably more destructive power than a .44 magnum pistol."

The Tennessee transgender shooter fired 152 rounds for a total of six casualties, half of which were fatal.

Either that is Stormtrooper precision, or you're simply absurdly wrong.

[Frank Drackman]

Speaking of Tennessee, where, oh where is the Murderer's "Manifesto"???? I'm guessing an Anders Breyvik-esque Tome, with desires to exterminate the "Normies" instead of the "Mud Peoples", can't have anything that contradicts the Marxist Stream Media's platform...

[Bruce Hayden]

There could hardly be a better hypothetical to illustrate the exceptional public danger created by an AR-style firearm. The, “teenage daughter,” in the hypothetical is doing the work to imply, “anyone at all.”

To get better insight, the judge who understands firearms must better understand his own hypothesis. Exceptional destructive power, packaged in a way to make it accessible and manageable by anyone at all, is the reason why AR-style weapons have become favorites of mass shooters.

You continue to make the same pre-Bruen mistake. You insist on interest balancing. That violates the Strict Scrutiny required by Bruen. You are essentially demanding that the long gun owned by tens of millions of happy owners because of its effectiveness be banned for them because a handful are misused every year. 2nd Amdt Strict Scrutiny doesn’t work that way. You are suggesting using a sledge hammer to kill an ant. That might have worked in liberal Circuits before Bruen. But Strict Scrutiny requires that any laws potentially violating the 2nd Amdt be narrowly tailored. And banning such a popular firearm in order to possibly potentially save a handful of lives isn’t anywhere near narrowly tailored.

[HumanoidAnderoid.]

Why yes, the court deciding that public policy can’t rely on any data or considerations besides hypotheticals about what 18th century rural gentlemen would have thought about 21st century weaponry is an absurdity that will eventually be watered down or overruled (a process that might start in the coming few weeks, if the Supreme Court decides that actually, giving domestic abusers with restraining orders easy access to guns is not what the Founders intended after all).

[Stephen Lathrop]

Hayden, no. I demand logical analysis. Your insistence that no one you now consider law-abiding deserves regulation is insane. You don’t know who deserves regulation. To the extent you are correct now, you will not be correct down the road in many instances. Gun owners are as susceptible as anyone else to psychosis, substance dependency, fecklessness, morbid depression, and a host of other ills.

Leaving those points aside, government cannot make policy on the basis of one policy for a preferred group, and another for some class of lesser status. Nor can there be public dangers government is powerless to regulate, because only some people are offenders. Sometimes everyone has to suck it up, and abide by policies tailored to control the bad actors, just like they do when they get in their cars.

The 2A emphatically cannot mean gun policy tailored to suit only the most fastidiously law abiding establishes the limit on what can happen to constrain the others. Constraining the others is necessary to protect the fastidiously law abiding.

[Carl_N_Brown]

Decades ago Robert G. Sherrill noted in his book "The Saturday Night Special" that banning guns, making continued ownership legally risky for current owners, might inspire a significant number of owners not to turn them in but pass them on to others willing to take the risk, or to hide them where they could be stolen and not reported as stolen contraband. (Sherrill was considered mostly pro gun control in his opinion pieces.)
Net result could be a massive dump of millions of ARs on the black market.

[HumanoidAnderoid.]

According to the FBI, 700,000 guns are stolen annually, and presumably are the no. 1 source of black market guns. Perhaps if we are worried about black markets, we should see what can be done to encourage legal owners to safeguards their guns a bit better?

[Toranth]

700K? That seems excessively high - where are you getting that estimate from?

According to the FBI Uniform Crime Reports for the past few decades, the average number of guns stolen per year is about 230,000 (all types). It's been lower until just recently, with the decade or so around the turn of the millennia at around 100K.

Crime victimization surveys match pretty closely, with over 90% of thefts reported to police. Even with low end estimates, that still puts an upper limit of about 400,000 per year stolen.

ATF says that only about 10K guns per year are stolen from dealers, the rest from individuals. UPS, FedEx, and USPS are responsible for more: between 10,000 and 15,000 a year.

BJS says that surveys show 75% or so of the thefts were incidental - a gun was stolen along with other items of value.

Curiously, there is no official data for guns stolen from law enforcement. The FBI does not list them, ATF does not track it or require reporting. The Trace attempted to do an investigation, and found that the sample of agencies interviewed admitted to thousand of guns stolen. With a larger sample, the average per agency was 11 per year. With more than 10,000 law enforcement agencies in the US, if accurate, that would be a LOT of weapons stolen from the government. (Probably too high, though).

[Stephen Lathrop]

Carl_N_Brown, my proposal would have the government outbid the black market, and undermine it simultaneously, while also slowing the pace of change.

Start with a rule that you get to keep your AR as long as you like, but do not get to sell it to any party except the government. When AR owners die, the government is the only party legally permitted to buy those guns.

Make sure the government pays more-than-market value, and into the bargain adds an extremely well-engineered and well-made substitute gun (various types to choose from should be supplied), so long as the owner sells the AR before dying.

An estate sale of an AR to the government does not get the exchange. Estate executors are legally obligated to sell only to the government. If that encourages posthumous hand-offs from estates to others who want to benefit by turning the gun in, don’t be too curious about it.

Also, whoever presents an AR (or multiple ARs) to the government for sale and exchange, gets to make the deal, no questions asked. Scorned girlfriends and ex-wives cordially encouraged.

Manufacture, importation, and sale of new ARs are all prohibited. Punishments for circumvention are severe enough to make attempts to do it about as likely as attempts to sell fully automatic weapons now are.

Basically, you get to keep your AR, but doing it puts you at avoidable risk of loss, to you, or to your heirs. And giving it up now does not mean you will be bereft of armed self-protection.

[Brett Bellmore]

"Start with a rule that you get to keep your AR as long as you like, but do not get to sell it to any party except the government. "

I start with a rule that, Screw you. And end there, too.

It amazes me that, as the political landscape gets worse and worse for the gun control movement, their rhetoric and demands just keep getting more and more over the top. Things that they couldn't have hoped to pull of at the height of their power they now think are reasonable expectations.

I suppose it's because, as the moderates have been peeled off, the people remaining are all fanatics, feeding off each other's fanaticism.

So, let's review: Almost all of the states have democratically adopted shall issue concealed carry. A majority of the states have democratically adopted 'constitutional' carry, concealed carry without any licensing requirement. The Supreme court has stopped avoiding 2nd amendment cases, and has a solid majority to uphold the 2nd amendment.

Obviously this is the moment for you to escalate your demands, right?

[Aubrey LaVentana]

"Exceptional destructive power"

Many States' game departments do not allow that caliber to be used to harvest deer or antelope, because it is not effective on them.

[Stephen Lathrop]

Aubrey, if you feel the need for better gun pedantry, there are plenty of commenters here who can help you out—maybe explain some of the complexities which make your statement true but pointless.

[Caphon]

His point is that the typical AR caliber (5.56) receives exaggerated attention for its destructive power, like shadows larger than the objects casting them. Fair observation and response to arguments attempting to establish (or presume) that there’s anything unusually destructive about the round. Some of those efforts get into territory that is extraordinarily absurd - recall the “expert” witness in Rupp v Bonta earlier this year testifying that a single .223 round could sever bodies in half and decapitate people. Such exaggerations prey on ignorance. In the face of it, providing some context seems warranted rather than pointless.

[Carl_N_Brown]

Curtis LeMay adopted the AR-15 to replace the M1 Carbine for SAC air base guards because the .223/5.56 would inflict debilitating wounds on saboteurs but do less damage to parked aircraft than the .30 Carbine round. .30 Carbine is not recommended for hunting deer, bear, boar, or anything bigger than a coyote.

[Gandydancer]

Nor is the .223. What is your point?

[JasonT20]

I just read a couple articles for deer hunters explaining what type of bullet in that caliber and what other conditions would work for ethical hunting. It isn’t a question of whether the round is lethal. It is a question of being reliably able to kill the target quickly with a single shot. The goal is to have the bullet penetrate deeply enough to cause quick, catastrophic damage to the heart or both lungs, rendering it incapable of circulating oxygen instantly.

One hunter suggested using a particular weight and type of bullet and limiting it to 150 yds or less and in conditions that allow for a more and accurate and broadside shot. He said he wouldn’t use it at longer ranges, for larger game (like mule deer - up to 300lbs), and in conditions that require a tougher shot, like higher winds or elevation differences.

In other words, sure. A 5.56 might not kill you instantly if it missed your heart or didn’t go through both lungs. Instead you might suffer enormous pain as you bleed to death. Or you could make it to a hospital, but they can’t do much for you since the damage to tissue a few inches away from the path of the bullet before it fragmented was so severe.

[Harvey Mosley]

From your past comments it seemss obvious that you think all semi-auto rifles shooting the .223 cartridge should be banned. Does this include the Ruger Mini 14? What about a semi-auto .44 magnum rifle? Ruger made one. It is easy to shoot, easy to reload, and since it was a rifle it is significantly more powerful than a revolver. This check all of your boxes. Should it be banned? How about a Springfield M1A? These are available in .308 and 6.5 Creedmoor and are pretty easy to shoot. Very easy to reload. Much more powerful than a .223. Should they be banned? If course, neither of the two rifles I mentioned have adjustable stocks or pistol grips so they must not be evil.

[Jason Cavanaugh]

"There could hardly be a better hypothetical to illustrate the exceptional public danger created by an AR-style firearm."

Jesus H. Christ you're a goddamn idiot. Even Chicken Little is asking for you to shut the fuck up.

[Kazinski]

Its really that good?

Ok, you talked me into it.

[Seamus]

The judge who understands firearms thus ignorantly extols as public virtues factors that when combined in the design of one weapon deliver disproportionate public danger.

Exactly. Because the hypothetical teenage daughter who likes an AR because she finds a .44 Magnum too hard to control perfectly personifies the kind of user who poses disproportionate public danger.

[ScienceABC123]

This all began back in the early 1930s when some people were saying - "A little gun control couldn't hurt." Look where it has brought us; divided the country for the last 90 years.

So where does this end? This is only going to end one of two ways: either the US Supreme Court finally rules all gun control laws are unconstitutional, or a second Civil War. I hope for the former, but fear it will be the latter.

[Brett Bellmore]

Back in the '30's they were sneaking the camel's nose into the tent of a country that was almost unbelievably free in terms of gun ownership by today's standards. People weren't on guard, and the gun controllers were very careful to not go after any gun that was widely owned. (The NFA was originally going to go after pistols, too, but they almost immediately decided that they would never get away with it.) They were just getting the leading edge of the wedge in, so that they could keep hammering it deeper.

Keep in mind the era: While those of us who WERE free, (It was the Jim Crow era, after all.) were a lot more free than today's Americans, freedom was under attack world-wide; Both communism and fascism were on the rise, and both were considered intellectually respectable before the Nazis let the cat out of the bag, and what Stalin was up to became impossible for people like Duranty to hide.

Today both totalitarian movements have been discredited outside of academia, and we're paradoxically much less free, but much more aware of how important that freedom is. So we're prying that wedge back out again.

But... academia. I wonder how long the moment will last, with our most elite schools openly teaching totalitarian ideology and attacking our liberties. Better make the most of it, this is not a time to go slow.

[Stephen Lathrop]

DaveM, take a look at ScienceABC123. See why I worry?

[tkamenick]

The judge gets it. The question is not "how dangerous is this". It's "why do we take them away from people who don't misuse them?"

[Brett Bellmore]

Because it's not the people who misuse them that they're worried about.

Gun control isn't about suppressing crime, that's just an excuse. It's about taking revolution off the table, so that the government no longer has to be afraid of seriously pissing people off.

[Absaroka]

I don't think that your average soccer mom member of Moms Demand is really thinking about suppressing revolutions. They don't own guns themselves, don't know people who do, can't imagine using one to defend themselves, and can't imagine how anyone else could imagine doing so. They read about guns being used for crime all the time, but don't know (more accurately, maybe - don't know that they know) anyone who has defended themself with one. With that knowledge base, of course gun control seems smart.

They aren't secret COMINTERN operatives.

[Brett Bellmore]

No, they're "useful idiots", is what they are. I'm not talking about the people who get suckered into supporting the cause, I'm talking about the people who are behind it all.

Like I said above, the gun control movement's 20th century start, back in the 20's and 30's, came when totalitarian ideologies like fascism and communism were considered intellectually respectable, actually thought to be the wave of the future. This was before they'd been exposed for what they were, and lost their shine.

It was all about making sure the plebes could be controlled by the elite technocrats running the government.

WWII resulted in a serious setback for the gun control movement, both because those ideologies got exposed as genuinely horrific, and because the soldiers coming home from war weren't about to let themselves be disarmed.

The modern restart of gun control in America came after the Kennedy assassination. It put a scare into American politicians, who thought, "That could be me!", and started to become genuinely afraid of guns in the hands of the citizenry. Not afraid of their use against fellow citizens, afraid of their use against themselves.

That modern restart was Astroturf, basically. The National Council to Control Handguns, later Handgun Control Inc, was founded by an "ex" CIA agent, Edwin O. Welles. He also helped start the supposedly competing National Council to Ban Handguns.

Since there's been a long history of gun control organizations being Astroturf. Not one of them has a membership based structure, they're all organized top down, and funded by outside sources like Pew, or government grants, not membership dues.

The "members" are just window dressing, they have no influence over the positions the organizations take.

[DonP]

"... and because the soldiers coming home from war weren’t about to let themselves be disarmed."

Funny you should mention that since it's not just a theoretical point.

https://www.americanheritage.com/battle-athens

[juris imprudent]

"I don’t think that your average soccer mom member of Moms Demand is really thinking about suppressing revolutions."

Perhaps if you suggest that guns might be their last resort to wearing the garb in Handmaid's Tale? That book/movie seems to really resonate.

[Mike45]

It is also interesting to note that some of the founders that endorsed the right to keep and bear arms felt that they would be needed to reign in the government within 20 years of the country's founding. For some of them this would easily have been within their own lifetime.
The Bill of Rights was passed as an interlocking package of individual rights as well as specifying a hierarchy of pre-existing rights of individuals over powers and authorities granted to governments. The 2nd recognizes free states necessity to have a militia to protect their freedom while also recognizing the right of citizens to have the ability to enforce their consent on their government.

[juris imprudent]

Note also that the 1776 Constitution for the Commonwealth of Pennsylvania included a provision for the right to arms then absent at the national level (under the Articles).

[Stephen Lathrop]

Note also that the 1776 Constitution for the Commonwealth of Pennsylvania included a provision for the right to arms then absent at the national level (under the Articles).

Which is exactly why there was no need to put self-defense into the 2A. The militia purpose was the one use of arms which united most of the states. Other questions related to arms divided them. There was no national constitutional consensus available for any but the militia purpose. Trying anything else would have imperiled ratification.

[juris imprudent]

Oh, except the PA provision wasn't just militia.

"That the people have a right to bear arms for the defence of themselves and the state..."

[Toranth]

Except, of course, the presence of the word "and" there means that both the person AND the state must be under threat before the person is allowed to bear arms. Therefore absent foreign invasion, clearly, no individual is allowed to bear arms.

/sarc, since I expect most hoplophobes not to get it.

[the questing vole]

Your account is not accurate. The term 'militia' as used by the colonists and early Americans included every adult male, and the implicit meaning of the 'right to bear arms' included self-defense because personal self-defense was a part of the defense of the community against possible tyranny (or just plain old incompetent government), both from abroad and at home.

[Seamus]

Actually, the term "militia" continues to mean, with a few exceptions, all able-bodied males--well, up to age 45, anyway. Oh yeah, and female members of the National Guard. See 10 USC 246.

[Nohbody]

Seamus, not just the term as used by the colonists, but to this very day.

Title 10 of US Code, Ch 12, Sec 246 explicitly defines militia. Male citizens or those who have declared intent to become same, 17 to 45 years old, and not part of the formal militia (Nat’l Guard or state Naval Militias).

[Bruce Hayden]

Except that statutory definition cannot override the Historical definition of “militia” of 1791. Maybe broaden it, but not narrow it. That’s because federal and state laws are subordinate to the Constitution, and the body of the Constitution subordinate to the Amendments to it.

[HumanoidAnderoid.]

"Instead of let them eat cake, Wells responded, let them use handguns like police carry. But these police officers have passed their fitness training, countered the court, "what about the 82-year-old lawful citizen trying to save himself at his home?"

Why, just like in the last couple of weeks, octogenerians successfully used their weapons to defend themselves against teenagers knocking on their doors, 20-somethings entering their driveways, and neighbors using very loud leaf blowers!

Being able to drudge up emotional loaded hypotethicals and example does not, in fact, make one an expert in gun policy.

Also of note, the judge's little "anti-depressants cause mass shooting" monologue at the end there. Because maligning the 30% of Americans who own guns is elitism and maybe Nazism, but maligning the 15% of Americans who use anti-depressants, is just Real Americans being real.

[Caphon]

I don’t think the judge’s comment was limited to anti-depressants, was it?

The number of Americans on psychotropics generally is higher than 15%, maybe closer to 25%. This varies greatly by age and gender, with some brackets being quite a bit higher.

There’s a perception that the percentage of random mass shooters on prescribed drugs (that incidentally are linked to violent ideation) is very high. Now, whether true or not, and whether a mere correlation or worse, it’s safe to say by definition that someone who decides by whatever means to slaughter innocents en masse has crossed several moral and ethical red lines before the act takes place. It then seems a worthy endeavor to ask about underlying cause (environmental, cultural, etc.) of the increases.

It’s worth noting that if surveys and the legal record are to be believed, incidents of these mass shootings have increased despite a decline in general household gun ownership in America and despite increasing restrictions on gun rights over the last century. It seems not just a worthy endeavor but a necessary one when calling for restricting the rights of all citizens and using these incidents as the rationale.

For instance, if there are significant cultural or environmental issues at play, are we then making a value judgement that such changes offer enough benefit to society at large that political rights must be sacrificed to preserve them? Calling for the removal of guns seems like an almost careless recommendation in light of what’s going on.

I get how weapon bans seem like an easy though debatable answer to outcomes, but I can’t help but feel that this debate is distracting us from the more difficult questions and social reflection.

[HumanoidAnderoid.]

But note that his comment wasn't "let's look at what creates mass shooters" but a vague statement about the pills mass shooters take. And if you like the judge believe that gun ownership is as fundamental civil right as the First or Fourth Amendment ( and significantly more fundamental than, say, voting or having non-Biblically approved sex), just throwing out that maybe we should just deny it to people on certain drugs is...pretty interesting, isn't it.

And that's the fundamental factor in this debate: in the end you can't fit the round peg of the gun ownership into the square hole of the same near- absolute protection we give to speech, because gun ownership is simply not the same thing or the same class of thing as speech. And if courts pretend otherwise, they are going to back themselves into either irrelevancy, or just authorizing massive civil rights violations of people deemed not quite kosher.

[Rev. Arthur L. Kirkland]

Gun nuts have three choices:

1) Work with others to devise and implement a sensible, effective system of gun regulation.

2) Hope racism, religion (bigoted, old-timey religion in particular), gay-bashing, rural backwaters, misogyny, statist womb management, antisemitism, hatred of immigrants, antisocial ignorance, and Islamophobia become more -- rather than increasingly less -- popular in America, enabling Republicans and conservatives to reverse the half-century tide of the culture war.

3) Watch better Americans arrange gun safety laws (which gun nuts won't like) over the wishes and efforts of gun absolutists, as a predictable consequence of being on the wrong side of history, the weaker side at the modern marketplace of ideas, and the losing side of the culture war.

Carry on, clingers. So far as your betters permit. Not a step beyond.

You get to whine and bluster about it as much as you like, of course. So long as you continue to toe that line.

[Caphon]

All gun control is fundamentally classist, and often racist. Always has been, always will be.

A man arguing for disarming the populace and giving the state a total monopoly on force-multiplying weapons is in no way an advocate for “the people” or their future.

[Lee Moore]

Judge McGlynn asked what is the turnaround time to get a concealed carry permit once it is filed, complaining: "Mine's been pending since September."

The hearing was in April. So 7 months to not process a concealed carry permit. And the applicant is a 60 year old Senate confirmed judge.

I trust they're not planning to rely on any promises of "good faith" application of their gun laws.

[Dilan Esper]

I've said this before, but I think the gun rights' arguments on relative dangerousness are pretty strong.

I.e., if you actually sat down and put the Second Amendment aside for a second and said "we're going to design a gun regulation that targets the most dangerous weapons", you wouldn't end up centering your regulation around the weapons that were covered by the 1994 assault weapons bans. Things like flash suppressors and pistol grips don't actually make guns more dangerous. You would, indeed, look a lot more at handguns. You might also look at magazine size, despite the talk above, and you'd probably look a lot at the type of ammunition (some kinds of projectiles obviously do more damage than others). "Assault weapons bans", as currently conceived, are more about how a gun LOOKS (assault weapons certainly look scary) than whether they are the most dangerous.

And when you add the Second Amendment in, obviously as long as we are in the Bruen "history and tradition" world it's different. But even if we got back into the "balancing dangerousness" world, I'm not sure you can really sustain a ban of AR-15's and other assault rifles under the Second Amendment. I highly dislike the culture surrounding these weapons, which appear in calendars with girls with bikinis and seem to translate as "badass" for a significant part of the world of gun enthusiasts. But they aren't uniquely dangerous as far as I can tell.

[Carl_N_Brown]

The Overmountain Boys revolutionary militia's Kentucky/Pennsylvania rifles were more effective than British General Ferguson's loyalist militia's muskets in the Battle of King's Mountain in North Carolina.

[shawn_dude]

Why is the conversation about gun rights and gun safety focused on banning and whether it is legal or not to do so? It seems to me that there wouldn't be discussions around banning if Americans weren't enduring mass shootings on a near daily basis. The folks responding to these mass shootings with laws limiting magazine size, requiring registration and tracking, and other approaches they think will make people safer aren't doing it just to pick on gun enthusiasts. If the "2A" crowd would come to the table with solutions to the very high amount of lethal gun violence in this country (relative to other Western nations) there would be fewer attempts to just ban the things outright.

[Caphon]

Another idea is that instead of focusing on curtailing a right that is fundamental to a peoples’ core political philosophy, maybe bring alternative solutions that these people who are opponents now would yield to or even help you advocate for.

Everyone is displeased with the high incident rate of random mass shootings.

It’s hard to regard bans on the “weapon de jure” in good faith, considering the history of gun control efforts predating the mass shooting trends. It makes mass shootings just seem like the “excuse de jure” for gun control.

I like to think that everyone knows we have a really complex cultural issue at hand that we are not well equipped to discuss. I’m not even sure we have the language to articulate the problems productively. “Mental health crisis” is a good example of this inadequacy of language.

But I’m not sure you get to threaten a bad and simplistic solution and then credibly put the onus on those impacted to solve a problem that is far more complex than your proposal implies. It is also your responsibility to find alternative solutions, but more importantly, the first solutions we need are around how we discuss the problem and find agreement on cause. Why are mass killings higher now than they were when, per capita, more American households had guns in them? Why are they higher today than they were twenty or thirty years ago (the AR has been with us for some sixty years).

[HumanoidAnderoid.]

And here is my rejoinder from the other side of the debate: to piggyback of your comment about language, the debate about guns is very frustrating because it hinges on what we think about when we think about the right to bear arms. To wit, I think there are really three positions in the gun rights debate: there are people who think that we don't have any individual right to own guns, people who think that the Second Amendment is just about as absolute as the First Amendment, and people who think that we do have the right to own guns.. but not quite in the same way as we have the right to free speech (because after all, stick and stones and bullets do break bones and words.. don't).

In other words, I think that Bruen was correctly decided, but for the wrong reasons, and using terrible logic. The decision was correct because the plaintiffs showed New York was handling permitting in an arbitrary and capricious way and because in the end I think that a law-abiding citizen should be able to own a gun unless there is a good reason he shouldn't. But I also think that the Bruen decision divorcing the question of gun regulation from any kind of public policy consideration, and demanding instead we treat the issue the same way we treat the First Amendment is borderline lunacy. To use an example I'm kinda obsessed with: every year in the US, there are 700,000 guns stolen, ending up, presumably, on the black market either here or south of the border. I feel like this is a problem that policy-makers should be free to tackle without trying to think on whether their decisions would have been acceptable in the late 18th century.

[Bruce Hayden]

Everyone is displeased with the high incident rate of random mass shootings.

Actually no. Not that I condone the sort of mass shootings that are popular on the news. But they are very rare in the scheme of things, in a country of 330 million or so people, 100 million legal gun owners, and 400-500 million guns in private hands. These are essentially copycat white on white crimes in gun free zones, and, as such, are part of the fairly rare gun murders in this demographic, whose murder rate is similar to similar demographics in Europe. They would probably disappear if the press just ignored them, instead of obsessing over them.

The problem with guns in our country is the out of control Murder rate in inner city minority, esp black, big Dem controlled cities. The same people who obsess about school shootings and te like, demanding “Assault Weapons” bans and the like, dutifully line up to back Defund the Police and elect soft on crime Soros backed prosecutors, who refuse to enforce the laws on the books, esp if a politically favored minority is the perpetrator. As far as mass shootings are involved, as has been repeated pointed out, those copycat white on white “mass shootings” have a similar toll as a normal weekend night I Chicago.

[Bruce Hayden]

Except though, for white on white shootings, in Gun Free zones, such as schools, almost all of the gun violence you are talking about occurs utilizing highly concealable handguns, mostly in minority (esp Black) lower income areas innDem controlled big cities. AR-15s, etc, are not very concealable, and so are primarily used defensively around homes, where concealability is not a issue.

[CindyF]

Why did Wells just not admit that allowing citizens to have AR-15's and large capacity mags would require the state to send more LEO's when they come to confiscate the pistols that they also do not what you to have.

Most governments consider it is their right to "allow" or not allow the citizens to own firearms. And they feel that a BB gun should be quite sufficient for a citizen's defense needs

[SimonP]

Well, McGlynn certainly comes off as someone who is open to arguments on either side of the issue before him, without his mind made up. Yes, indeed. Another Trump appointee, go figure.

Ironically, he’s put his finger on the conflicting impulses at the core of our emerging Second Amendment jurisprudence, which is that, as an individual right protected by the Second Amendment, the right to bear arms is fundamentally about our being able to use force in self-defense, while the historical rationale for the Second Amendment was to provide for the ability of the “militia” – i.e., all able-bodied men – to stand up and defend the nation from attack or invasion.

So, while it makes some sense to suggest that weapons like AR-15 might be core to the Second Amendment’s protections, it’s hard to square with the ostensible natural-law root of the right, unless you’re willing to engage with McGlynn’s bizarrely-gendered violent fantasies. We have an individual right to bear arms in our self-defense, but the scope of that right extends to weapons and ammunition capable of mass violence, for historically-rooted reasons - which has little to do with anything we'd ever actually need for our personal self-defense.

But perhaps that’s a self-correcting tension, as we’ll find that, the more people own AR-15s as their weapon of choice, more of us will need to seriously consider getting one of our own, just to protect against other potentially-violent gun owners. We’ll all be leaf-blowing with our AR-15s, soon.

[Gandydancer]

The right to bear arms is not created by the 2nd Amendment, as it’s text makes clear.

[JasonT20]

Only in the same sense that none of the rights listed in the Bill of Rights were created by those amendments. As the text of the 9th Amendment makes clear.

[Bruce Hayden]

But perhaps that’s a self-correcting tension, as we’ll find that, the more people own AR-15s as their weapon of choice, more of us will need to seriously consider getting one of our own, just to protect against other potentially-violent gun owners. We’ll all be leaf-blowing with our AR-15s, soon.

That’s not necessarily a bad thing. AR-15s are hard to hide or conceal. So, they make a good defensive weapon, and a fairly poor offensive one, at last in normal times. Sure, you may see them at protests, maybe even on both sides. But very rarely slung on the back of someone walking into a store. In rural MT, I am around a lot of guns, but the only time you see AR-15s, really, is at the range.

[JasonT20]

It sure does seem like the U.S. is moving toward everyone feeling the need to arm themselves to protect their families from each other, even their neighbors. Like the 5 people murdered by their neighbor, with a manhunt currently underway for him. It seems that they didn’t like that he was exercising his 2nd Amendment right and practicing with his AR-15 at just before midnight while they had a baby trying to sleep. Maybe they should have been ready with their own arsenal if they were going to complain, just in case the drunk asshole decided to come over to their house and start shooting.

I really do wonder sometimes. Do the gun rights absolutists really want this kind of world? Do they think that nuts and drunks and idiots killing innocent people is just the price we have to pay so that others can have their guns to protect themselves from threats both real and imagined? And perhaps from threats that would be much less probable if there were far fewer guns in circulation?

Or, instead of motivating more people to arm themselves, it could just push enough people with moderate views on gun control to agree that much stronger regulations are needed. Of course, given that current judicial landscape, it would take an overwhelming supermajority to accomplish. Which is a problem in itself.

[DonP]

Just came in my E-Mail from the ISRA.

Preliminary Injunction Issued
Today, a federal judge for the Southern District of Illinois issued a preliminary injunction that blocks Illinois’ ban on more than 170 semi-automatic firearms and magazines over certain capacities. The law took effect on January 10, 2023, but shortly after, lawsuits were filed in state and federal court.

“We want to thank Judge McGlynn for issuing his ruling today,” said Richard Pearson, Executive Director of the Illinois State Rifle Association. “We have said from day one that this law is unconstitutional and infringes on the rights of legal firearm owners in our state. As the leader in protecting 2nd Amendment rights, we will not stop supporting our residents and their constitutional rights.”

I expect the Full Conclusion to be available online in an hour or two.

[Alan Beck]

Let's not forget Thomas Maag's contribution to the oral argument on behalf of the plaintiffs. He showed a lot of history and firearms knowledge which complemented Erin's arguments. E.g. his knowledge of the Very pistol and his ability to show the court the grenade launcher at issue in the case does not deal with explosives expanded the scope of the injunction received.

[Bruce Hayden]

CALEB BARNETT, et al. v KWAME RAOUL, et al., (Barnett v. Raoul), SDIL, 4/28/23, Order and Memorandum imposing a Preliminary Injunction by Judge Stephen McGlynn of the Southern District of Illinois.https://storage.courtlistener.com/recap/gov.uscourts.ilsd.94369/gov.uscourts.ilsd.94369.43.0.pdf

Pretty quick turnaround. Judge utilized Heller, McDonald, and esp Bruen, to prevent the enforcement of Illinois’ Protect Illinois Communities Act (“PICA”).