Massachusetts Ban on Most Self-Defense Firearms Violates Second Amendment | Cato @ Liberty
The trial judge followed the lead of the Maryland case of Kolbe v. Hogan (in which Cato filed a brief supporting a petition to the Supreme Court), misconstruing from a shred of the landmark 2008 Supreme Court opinion in District of Columbia v. Heller that the test for whether a class of weapons could be banned was whether it was “like an M-16.” Meanwhile, the U.S. Court of Appeals for the First Circuit (in which Cato also filed a brief), conjured up a complex interest-balancing test that boiled down to a much simpler question: is it like a handgun? If not, the weapon is not sufficiently “well-suited” to self-defense in the home and can be banned. Both tests contravene the core holding of Heller that all weapons in common civilian use are constitutionally protected…
Although the courts have uniformly looked to statistical data of some form in establishing common use, they have been unable to agree on what the relevant statistic is. The total number of the banned weapons owned, the percentage the banned weapons constitute of the total national arms stock, and the number of jurisdictions in which the banned weapons are lawful have all been used to determine the breadth of constitutional protection. By any metric, however, the weapons banned by the Massachusetts law are clearly in “common use.”
We all need to do our part for “common use” by buying a variety of firearms, making it easier for the leftwing legal clerisy to recognize “common use.”* Creating gun bans by simile is overtaxing their imaginations and stamina.
SCOTUS’ District of Columbia v. Heller decision opened the simile door a bit more in this infelicitous bit:
[T]he sorts of weapons protected are the sorts of small arms that were lawfully possessed at home at the time of the Second Amendment’s ratification, not those most useful in military service today, so “M-16 rifles and the like” may be banned.
Ratification of the Second Amendment was in 1791. The small arms possessed at home in 1791 were identical to those “most useful in military service.” In fact, a large proportion of those small arms possessed at home were in military service. The term ‘militia’ comes to mind.
The “lawfully possessed at home” in 1791 interpretation doesn’t plausibly cover the mechanism of the vast majority of firearms in use today. Percussion caps were just being prototyped by 1807. And, if that’s how a judge chooses to interpret District of Columbia v. Heller, you can grab your flintlock.
The left has argued exactly this: “The Second Amendment only applies to flintlocks.” That they are disingenuous in this is shown by the fact they won’t accept the corollary argument that “The Press” means hand operated printing presses based on moving bits of lead around, and that the internet should be shut down despite the First Amendment. Well, OK, they are arguing speech on the internet can be banned. But not because it’s technology invented since 1791.
Still, potential for banning modern firearm technology is not the most egregious part of that snippet. That distinction belongs to the phrase “and the like.” We’ll look at why that is momentarily. First we need to note some characteristics of an M-16.
An M-16 is a magazine fed automatic weapon (of which civilian possession has been severely restricted since 1934). It is rifled, breech loading, and uses brass cased ammunition with a primer ignited by a firing pin. Those are characteristics you could use for saying it’s ‘like’ something else. Just about any semi-automatic firearm, if we’re honest about it.
If the Progressives knew anything about how guns work they could have a field day banning technologies invented after 1800. Rifling (1498) and breech loading (16th century) are safe. Not much else is.
Under “common use”-1791, firearms capable of holding more than one cartridge (Magazine – 1860) could be banned. Firing pins (1840) could be banned. Primer fired brass cased ammo (18xx) could be banned. Oh, revolvers (1836) could be eliminated entirely. Forget your 1911.
There’s more, but we don’t need it to make the point: “And the like” bans based on 1791 technology would eliminate 95% of guns commonly in civilian use today. That’s actually how they approach it. I know it’s said that gun bans are often based on cosmetics, like adjustable stocks, pistol grips, and flash hiders. Mostly true, but the cosmetics would be much different without, for example, that scary normal capacity detachable magazine. This is a way to attack the technology using appearance.
Yet even that’s less nonsensical than California’s attempt to specify nonexistent technology as a means of banning firearms – microstamping casings.
The state argued that a law should not be struck down simply because it is impossible to implement.
“Like, impossible Dude.”
Consider the word ‘like.’ It doesn’t mean ‘identical,’ and it depends on what you select to compare. An apple is like an orange; if you focus on shape, size, nutritional profile, and even which end of the spectrum skin color tends toward. A whale is biologically more like a dog than it is a frog. ‘Like,’ lets you cherry pick the comparators fitting your desired outcome.
A frog is like a Granny Smith if you consider internal temperature, skin color, and dependence on insects.
The differences between a handgun and a rifle have nothing to do with the irrelevant criteria the Massachusetts court must necessarily have applied. Which outside of those various cosmetic features and size (having excluded automatic weapons – 1883), boils down to the capability of using a detachable magazine and/or with a capacity higher than 10 rounds. Modern firearms are all like each other.
And tell that bit about “is it like a handgun” to the pregnant woman who used an AR-15 to defend her family last week – that it wasn’t “well suited” to self defense. An AR is more accurate, easier to use than a handgun, and can hold more rounds – rounds you might need in a one on many firefight. The only question is, “Can it be used for self defense?” Not relevant is, “The court would like you not to have a gun for home defense, but if you do, use a handgun we won’t let you carry outside the home.”
Looks ‘like’ an M-16 does not compute. ‘Like’ a handgun includes machine pistols.
The Progressives have been struggling to define “assault weapon” for decades. The fact they focus on cosmetics is reason enough for the jurisprudent to discard this ‘like’ business.
*”Common use” is ‘like’ everyone else has, so it’s a collectivist standard for an individual civil liberty. And I think it might prohibit rail guns, as one example. Not that we have any man-portable rail guns yet, but we will.