Trump judges make semi-automatic rifles easier to access days before Buffalo mass shooting|SCOTUS expected to limit gun control

Semi-automatic rifle ban

Just three days before an 18-year old man traveled 200 miles to kill 10 people in a predominantly Black neighborhood using an AR-15 style rifle, two Trump judges made it easier for young people to access the same semi-automatic rifles.

Following the mass shooting at Poway Synagogue in San Diego, California, by a 19-year old, the state raised the minimum age to buy a long gun or semi-automatic rifle from 18-years old to 21-years old. Young adults who have a hunting license, are law enforcement agents, or are members of the military are exempt.

Gun advocacy group Firearms Policy Coalition sued on behalf of Matthew Jones, a young adult who wanted to purchase a restricted firearm without first obtaining a hunting permit (which requires a minimum of 10 hours of instruction in areas including firearms safety and handling). The plaintiffs argue the California law is unconstitutional because it “abridges Young Adults’ Second Amendment right to keep and bear arms in self-defense and for other lawful purposes.”

District Court Judge M. James Lorenz (a Clinton appointee) sided with the state, ruling that “[t]he potential harm of enjoining a duly-enacted law designed to protect public safety outweighs Young Adults’ inability to secure the firearm of their choice without proper training.”

When analyzed through the lens of history and tradition, it is apparent that a number of gun regulations have co-existed with the Second Amendment right.

Lorenz cites a 2012 case from the 5th Circuit (NRA v. Bureau of Alcohol) in which the judges surveyed the existence of firearm restrictions throughout the history of the United States:

Arms-control legislation intensified through the 1800s…and by the end of the 19th century, nineteen States and the District of Columbia had enacted laws expressly restricting the ability of persons under 21 to purchase or use particular firearms, or restricting the ability of “minors” to purchase or use particular firearms while the state age of majority was set at age 21….By 1923, therefore, twenty-two States and the District of Columbia had made 21 the minimum age for the purchase or use of particular firearms.

The 5th Circuit also noted that at the time of America’s founding, young people were not considered adults until they reached the age of 21:

Notably, the term “minor” or “infant”—as those terms were historically understood—applied to persons under the age of 21, not only to persons under the age of 18. The age of majority at common law was 21, and it was not until the 1970s that States enacted legislation to lower the age of majority to 18…If a representative citizen of the founding era conceived of a “minor” as an individual who was unworthy of the Second Amendment guarantee, and conceived of 18–to–20–year–olds as “minors,” then it stands to reason that the citizen would have supported restricting an 18–to–20–year–old’s right to keep and bear arms.

Nevertheless, the Trump judges of the 9th Circuit disagreed (pdf), ruling last week that the California law “is a severe burden on the core Second Amendment right of self-defense in the home.”

Handguns are the quintessential self-defense weapon but young adults already cannot purchase them, Cal. Penal Code § 27505, 18 U.S.C. § 922(b)(1). And under this ban, they also cannot purchase semiautomatic centerfire rifles. That leaves nonsemiautomatic centerfire rifles, rimfire rifles, and shotguns. Non-semiautomatic rifles are not effective as self-defense weapons because they must be manually cycled between shots, a process which becomes infinitely more difficult in a life or death situation. Rimfire rifles generally aren’t good for self-defense either, because rimfire ammunition has “poor stopping power” and are mostly used for things like hunting small game. So for self-defense in the home, young adults are left with shotguns.

Even acknowledging that shotguns are effective weapons for self-defense in the home, shotguns are outmatched by semiautomatic rifles in some situations. Semiautomatic rifles are able to defeat modern body armor, have a much longer range than shotguns and are more effective in protecting roaming kids on large homesteads, are much more precise and capable at preventing collateral damage, and are typically easier for small young adults to use and handle.

District Judge Sidney Stein, a Clinton appointee, dissented, highlighting young adults’ disproportionate commission of violent gun crime:

To start, California highlights the fact that young adults are disproportionately more likely to commit violent crimes in general and gun violence specifically than older adults. While 18 to 20-year-olds comprise less than 5% of the U.S. population, they account for more than 15% of reported homicide and manslaughter arrests. In California alone, 18 to 19-year-olds account for roughly 12% of the state’s homicide arrests…

The state legislature manifestly was entitled to have considered the disproportionate commission of violent gun crimes by young adults, the fact that most mass shooters purchase weapons legally, and the fact that semiautomatic weapons “have been the weapons of choice in many of the deadliest shootings in recent history,” as eminently reasonable bases to curtail the ability of young adults to purchase or receive transfer of semiautomatic rifles from [federally licensed firearms dealers].

New York’s gun law at SCOTUS

If California decides to appeal the 9th Circuit’s ruling to the Supreme Court, the state will likely face an uphill battle convincing the conservative majority to uphold gun regulations.

Any day now, the Supreme Court could release its opinion in New York State Rifle & Pistol Association v. Bruen, a case addressing the constitutionality of New York’s century-old handgun-licensing law. The state bans the open carry of handguns entirely; Officials may grant concealed carry permits only if applicants can demonstrate “proper cause” to carry beyond reasons of general safety, such as employment or having experienced legitimate death threats.

Court observers expect the majority to limit, if not outright overturn, New York’s law. Chief Justice John Roberts latched onto the gun rights advocates’ claim that the Second Amendment is being unconstitutionally restrained compared to First Amendment rights:

“You don’t have to say, when you’re looking for a permit to speak on a street corner or whatever, that, you know, your speech is particularly important. So why do you have to show in this case, convince somebody, that you’re entitled to exercise your Second Amendment right?”

He then continued, “You can say that the right is limited in a particular way, just as First Amendment rights are limited, but the idea that you need a license to exercise the right, I think, is unusual in the context of the Bill of Rights.”

Both Justices Samuel Alito and Brett Kavanaugh suggested that individuals scared of crime outside the home should be able to use that as “proper cause” to obtain a concealed carry permit:

Alito: All these people with illegal guns, they’re on the subway, they’re walking around the streets—but the ordinary hard-working, law-abiding people I mentioned, no, they can’t be armed?

Kavanaugh: …Just to follow up on the other questions, why isn’t it good enough to say I live in a violent area and I want to be able to defend myself?

The Solicitor General, representing the government, responded that licensing is handled by local officials and judges, tailoring the needs and risks to the local environment. A rural area of upstate New York, for instance, may be more lenient in granting permits due to the lack of urban density and the inherent danger of firearm proliferation in such crowded environments.

Furthermore, the Solicitor General noted, the First Amendment is also limited and regulated, specifically mentioning parades (permitting) and solicitations for charity. The government can, for example, place reasonable time, place, and manner restrictions on speech for the public safety.

Should the Supreme Court rule New York’s permitting law unconstitutional, there are a couple of different possible outcomes. The state could be required to lower its standards to obtain a license to carry a concealed handgun. Or, on the other side of the spectrum, the state could be compelled to grant licenses to nearly all applicants.

While most guns used in shootings in New York City are not owned legally, research has shown that the vast majority of crime guns are often purchased legally in states with less restrictive laws and smuggled into the city. Iesha Sekou, an anti-violence activist in Harlem, said that weakening gun laws would only make the problem worse.

“Loosening gun restrictions is like pulling the thread out of the sweater,” she said. “It will make the work of gun reform and all of the things we fought for to make guns less available — it will undo that work.”

Interpreting the Second Amendment

Finally, let’s take a look at the Second Amendment.

“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.”

Until recently, the controlling Supreme Court opinion on the Second Amendment was United States v. Miller, a case contesting the National Firearms Act (NFA) of 1934. In response to the St. Valentine’s Day Massacre, the NFA mandated the registration and allowed for the taxation of firearms, and attempted to create different classifications of guns in order to make certain kinds (like machine guns and short-barreled rifles) harder to get. The plaintiffs complained that the NFA treated sawed-off shotguns differently from regular shotguns. The 1939 Supreme Court easily dispensed with their arguments, ruling that the Second Amendment only protects issues related to militia readiness:

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.

It would be nearly 70 years until the Supreme Court would drastically reinterpret the Second Amendment in 2008’s D.C. v. Heller. The case challenged D.C.’s Firearms Control Regulations Act of 1975, which banned the purchase, sale, transfer, and possession of handguns, automatic firearms, and high-capacity semi-automatic firearms by D.C. residents other than law enforcement officers or members of the military. The law further required all firearms to be kept “unloaded and disassembled or bound by a trigger lock”.

For the first time, the Court (Scalia, Thomas, Roberts, Kennedy, and Alito) held (pdf) that “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

Justice Stevens dissented, writing:

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution

  • Justice Breyer wrote his own dissent joined by Stevens, Souter, and Ginsburg.

The origin of the Second Amendment

It is also worth mentioning that the justices—both conservative and liberal—ignore a key reason for the Second Amendment’s creation: white plantation owners’ fear of slave uprisings and revolts. It was added to the Constitution after James Madison, a federalist, lost a debate to George Mason, an anti-federalist, and Patrick Henry, Virginia’s governor.

The principal instrument of slave control was the militia. At a time when enslaved black people outnumbered white slave owners in many parts of the country (particularly from Virginia south), the militia was viewed as vitally important to putting down slave rebellions.

The militias were controlled by state government. However, the new Constitution changed that, giving Congress the power to organize and arm the militias.

During the debate in Richmond, Mason and Henry suggested that the new Constitution gave Congress the power to subvert the slave system by disarming the militias. “Slavery is detested,” Henry reminded the audience. “The majority of Congress is to the North, and the slaves are to the South,” he said.

In other words, the slavers worried that the federal government, dominated by Northerners, could choose not to help the South should their slaves demand freedom. Madison eventually gave in and included the Second Amendment. As should be obvious by its origin, the amendment did not apply to black people. And since the ratification of the Constitution, it has had a disproportionate impact on Black Americans (from Carol Anderson’s “The Second”):

Regardless of which legal interpretation of the Second Amendment is deployed—be it an individual’s right to bear arms, the right to a well-regulated militia, or even the attendant right to self-defense—each has been used against African Americans. The Second was designed and implemented to abrogate and deny the rights of Black people…

Regardless of the court’s stance, there is no clear pathway to human rights where the Second Amendment is concerned. A series of legal decisions best illustrates this point. In Lewis v. United States (1980), citing the need for public safety, felons were stripped of the right to bear arms. This ruling, of course, fell disproportionately on African Americans, because an unequal justice system had unnaturally created mass incarceration and imprisoned the Black community. Meanwhile, African Americans in Chicago and Washington, D.C., had faced staggering gun violence and record homicides, and responded with statutes to reduce the number of firearms in their cities. But they soon ran headlong into NRA-backed Supreme Court decisions that interpreted gun control as violating the individual’s right to bear arms. Guns would once again legally flood those cities. Similarly, state laws that banned firearms in public housing in order to provide for the security of the residents have also been overturned. Each of these—restricting felons from possessing guns, while also allowing a greater flow in urban areas for “protection” against crime, and forbidding firearms in public housing—had at its center the argument of “safety” and “security.” But they had something else in common, too: African Americans were always the ones who posed the threat and always the ones who bore the brunt of the decision.

  • Further reading: “The Second Amendment Is Not Intended for Black People,” Slate. The NRA Supported Gun Control When the Black Panthers Had the Weapons,” “How the NRA resurrected the Second Amendment,” Vox. “The Mulford Act,” Wikipedia.