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Notes -
Duncan v. Bonta drops, again:
It's not surprising to find the 9th Circuit finding in favor of a gun control law at en banc, though some people are surprised that the vote was the exact same as before SCOTUS sent it back down. No firebreathing VanDyke dissent this time, and while it's somewhat funny that I can predict exactly how well Hurwitz's 'it's just a temporary emergency stay!' aged like fine milk, it's still disappointing he couldn't be bothered to either vote differently or provide a deeper analysis of Bruen as a concurrence. There's some fun discussion from Nelson about whether the 9th circuit's newly-created comeback rule is compliant with federal law, and apparently the court claims that it'll even request briefings on the matter... but since five of the judges out of eleven in the en banc panel are those newly-senior judges that the law does not allow on en banc panels, I don't think it'll be any more compelling to them than the violation of process back in 2020 were when they were doing it explicitly.
The fun part is the explicit text of that original order: "Judgment VACATED and case REMANDED for further consideration in light of New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. ___ (2022).". That quote, above? Is all that the 9th Circuit's en banc panel did, in terms of considering Bruen. As Butamay points out :
Does this count as massive resistance to a direct order from the Supreme Court? I'm sure someone (if not huadpe, now?) could argue otherwise: emergency stays with perfunctory logical support are not exactly unusual, and the majority do mention Bruen for almost a whole paragraph. But it's more plausible to read this the opposite direction, especially given the Court's willingness to punt on procedural issues whenever plausible (and sometimes even when not). Getting GVR'd repeatedly and with increasingly strict-yet-ignored direction is nothing to party about, but it isn't a loss, either. You can make a media spotlight out of it, if you're on the 'right' side, but that's not the real motivation.
It's another two or four years to enforce unconstitutional laws, to mark those who don't comply with an unconstitutional law as felons, to build alternative methods to harass and exclude those who comply but don't agree, to cost your opponents tremendous amounts of money (only a fraction of which they may get back), and to wait for the composition of the Supreme Court to change or be changed.
The only post-Bruen challenge the Supreme Court has taken is Rahimi, and that's clearly to give them a chance to backpedal and find that a restraining order is certainly a sufficient reason to take away a person's gun rights. The Supreme Court is simply not interested in people having gun rights, only in grandstanding about them.
I would be interested in hearing what 2A advocates consider the legal boundaries of the 2A in terms of what states (or congress) are allowed to prohibit. Presumably raising an army or building nukes is off the table, and while the space between that and these magazine bans is obviously immense, the constitution is pretty vague.
I'm going to try to be charitable, but this is a discussion space where people will provide amazingly dishonest analysis while claiming a straight face.
Founding-era behaviors included issuing letters of marque to private individuals who then took their cannon-equipped privately-owned and fully-staffed ships off a hunting. Beyond the practical issues with trying to ban such a thing -- the recent campaign for increased enforcement of state and development of federal anti-paramilitary laws in practice has mostly been calls to go after the political speech that gun control advocates don't like -- the pretense that they survive constitutional scrutiny because of a bad read of Article One powers is laughable.
I think there are a few major categories of firearm-related regulation that are pretty well-supported under current text and history analysis:
((I think these practically cover nuclear weapons, simply because of the mix of incidental radiation exposure and fallout and large minimum yield make them very much the archetype of "infernal machine" that was often banned in the early United States, but I also think it's kinda irrelevant.))
I don't like 'sensitive places' as a legal term because it's invited (often hilarious) abuse, but then again I expect Newsom would have abused a comma-separated list had Thomas written one instead, and there's very clearly a historical record of restrictions for some very specific locations. Areas with highly-restricted access, that have restricted access and the government is acting as the property owner, or where lawful use is impossible or dangerous, are more reasonable than everywhere but the sidewalk.
Specific findings by a court of dangerousness of an individual person. Most of the limits here are due process ones, rather than second amendment-specific matters, but modern law has permitted a ton of due process violations here because guns ick. The process must be appealable both on matters of law and fact, must be an adversarial hearing with criminal-law-typical standard of proof, must have the right to confront their accuser, must be based on concrete allegations and with an actual statutory definition of dangerousness rather than courts treating it like a restraining order++, must respect property rights, so on. I'd argue that the analogue to surety laws requires a Second Amendment-specific way to expunge loss of rights (and federal law means that the ATF is supposed to be doing it right now, it's just not funded), but I don't expect SCOTUS to ever be willing to establish that.
While I think they're bad policy, age restrictions up to age 18 are probably constitutional.
Well. I guess I learned something today.
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Given the historical tradition of private ships and cannon, what excludes a zero down, 25% APY Viper loaded up with some cute girls for a weekend? Not financially prudent but that's not constitutionally relevant.
Ah, sorry, I mixed up names. I was thinking the Vektor, a famously unsafe concealed carry pistol.
The AGM-80 is more just wildly impractical.
And when you said this, I was trying to figure out
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I was thinking of the other other Viper.
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Raising an army is clearly and uncontrovertibly protected. The Amendment says it right there in the text! I'm genuinely baffled by the idea that there are honest people that can read as straightforward of a sentence as "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" and come away believing that this doesn't protect ownership of light infantry weapons for the purpose of fielding a fighting force.
As the Court noted in DC v. Heller, the "militia" referred to in the Second Amendment is not an army, nor any other sort of organized military group, but rather "'all males physically capable of acting in concert for the common defense.'" As it also noted, the Constitution gives Congress the power to "call[] forth the Militia" and to "provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
So, yes, the Second Amendment protects the right of individuals to own weapons for the purpose of fielding a fighting force,* but, no, it does not protect the right of an individual to raise a private army.
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Arguably, congress having reserved the power to issue letters of marque would prohibit militias from developing significant power-projection capabilities.
A letter of marque is a license to use your fully-armed privately-owned warship aggressively, not to merely own one.
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What it comes down to is no elitist or member of the elite -- and that includes the conservative members of SCOTUS -- actually wants the unwashed plebes to have guns. So they interpret the right out of existence, or look the other way when others infringe it.
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Does “well regulated” actually mean “free for all, any citizen can do it”? I don’t know that it does. And again, my point is that why do (most non-ancap) 2A advocates think the limit is “light infantry weapons”? That seems, again, arbitrary - why can’t I build a warship in case the people’s militia requires naval power to protect the security of the people? Why can’t I field a battalion of tanks? There’s an inherent arbitrariness to almost all except the “privately owned nukes are constitutional” and “it’s not referring to individual ownership at all” interpretations of the 2A that should be acknowledged.
A more socialist SCOTUS could define “the right of the people” as the collective, rather than individual right, and define “well regulated militia” as ‘army’. In general I think these kind of Talmudic arguments about the literal text of the constitution are stupid, but the long term solution ought to be codifying it in some detail rather than, as @naraburns says, just getting your guys on the Supreme Court to read the tea leaves and do what you want.
You can. What's stopping you?
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Yes, and a different court could also claim that speech was only protected for purely political speech by (natural) individuals, and even then the manner of such speech could be regulated.
It IS codified. The more detail, the more wiggle room for those who wish to interpret it out of existence. As indeed, many people including yourself do using the nominative absolute the Second Amendment begins with ("A well regulated militia being necessary to the security of a free State...")
I don’t see how codifying that all US citizens have the right to own any small arms (defined as X) and to own unlimited (or some other large amount) of ammunition for them would lessen gun rights compared to the current situation. You and @Walterodim seem to almost be making the opposite argument from the same perspective - he would like more codification of the actual rules, you don’t, because you think they’d inherently make things worse than the current vagueness.
I would be fine with explicit codification in principle, but I think the current state is that my opponents are bad faith interlocutors that want to disarm people as much as possible. I would only support Amendments that add restrictions for explicitly called out weapons of mass destruction. Anything spelled out as a positive right is likely to be interpreted as a negative right - think of it like the dormant commerce clause, but for weapons. With regard to small arms, I have zero interest in explicit codification beyond the existing, very easy to read 2A, which covers the relevant rights as clearly as plausible.
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Codifying ownership of small arms can (and would) be interpreted as excluding them from ownership of anything larger. If justices are capable of reading "shall not be infringed" as "can be infringed to an arbitrary degree", they're surely capable of reading "the right to small arms" as "the right to only own small arms".
Almost everyone believes that though, they just vary on what degree, as far as I can tell. I haven't found a 2A advocate in person who thinks prisoners in prison should be allowed to bring rifles in with them, for example (though there probably are some), and quite a lot think felons even after release should not be allowed them. So as per the old saw, all we're really doing is haggling over how much infringement there should be, most people seem to agree that infringement is indeed required in some degree.
If almost immediately after being written, in order to function your society has to add the unspoken caveat, well except people in jail obviously, and the clearly mad, and, and and. Then you're just admitting from the get go, that it doesn't actually mean exactly what it says. You're just haggling over the price from then on and logically once you have admitted that it is flawed, then that makes it much easier to ignore. The right was neutered from the beginning because it was written for theory not for practice.
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No, it means functional.
No, that is the minimum that anyone could plausibly claim that it allows. If it protects anything at all, it protects ownership of light infantry weapons. I think it protects much, much more than that, but there is no plausible and honest reading that would exclude light infantry weapons, which are the most basic component of constructing a militia.
So where do you think the line is, if there is one?
There is no legitimate line currently. If we need context to know whether the maximalist interpretation is consistent with the intention of the writers, we can look at the private ownership of warships and the explicit power of Congress to grant letters of marque and reprisal. If privately owned warships with dozens of cannons were considered as legitimate by the United States federal government, I am very confident that the intent was not to exclude categories of weapons discussed in most modern conversations.
As I said in another post, I would favor an Amendment (or just an outright convention) that updates to exclude weapons of mass destruction explicitly. There is a pretty clear process for that and I see no good reason to expect strong opposition to a ban on private ownership of nuclear weapons. My position is that making laws should require actually writing them down, not concocting completely implausible interpretations to fit sensibilities. Really though, this is a thought experiment, and a pointless one. The current status quo is so comically far beyond legitimate law and relies on such utterly ridiculous reasoning that it makes no sense for me to be put in the position of outlining where I would draw my line. It suffices to say that I don't draw it at 10-round magazines.
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Why, though?
The Second Amendment was written by people who were accustomed to raising local militia to fight off, essentially, bandits running raids on otherwise-peaceful settlements. They had just fought a war for independence in which not only were freeholders with firearms instrumental, but also in which privately-owned merchant fleets (equipped with naval artillery and no strangers to fighting pirates) were donated to the cause. The difference between armaments used to fight wars, and armaments used to fend off everyday barbarism, was in those days essentially zero. The very idea of nation-states was relatively fledgling, and not understood in most of the world. If the Second Amendment is understood, as the entire Bill of Rights was intended to be understood, as a check on government power, then limiting people from possession of arms sufficient to fight, if necessary, a successful revolutionary war is clearly in violation of the Second Amendment.
Of course that's crazy, nobody (or close enough) wants a world where every billionaire fields a private army and the "family atomics" (a la Dune) become an important part of maintaining one's feudal inheritance. Weapons, war, and politics are so different now that enforcing the fairly clear original meaning of the Second Amendment would very likely be disastrous for all involved. Well, the Constitution is not inflexible, but the mechanism it has provided for change is the Amendment process. As a nation we've apparently decided that's simply not good enough, it's much easier to just persuade five of the nine oligarchs who rule the country in truth to patch things up by pretending there's some legitimate question as to what the Second Amendment could possibly really mean.
And like... maybe that's even for the best? But there's nothing democratic about it, and certainly nothing I would call "constitutional." It's pure ad hoccery, even though it is in many cases (like nukes) pretty obviously a good idea. But implementing what seem like good ideas because they are good ideas, rather than because they have met the previously-agreed-upon process for establishing new laws, is a departure from Rule of Law as an ideal ("and I'm tired of pretending it's not").
Right, I'm good with banning privately held nuclear weapons and other weapons of mass destruction. These are legitimate categories of new technologies that I think would be bad for individuals to hold. The way to do that is proposing an Amendment that bans privately held nuclear weapons, which one would think passes without all that much trouble. But no, we don't feel the need to do law in any coherent or legible fashion, we just trust that a group of ethically compromised lawyers know what's best and can rule accordingly.
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Until the 2A opponents are willing to acknowledge and respect the things which ARE clearly protected, I'm not willing to play the game of "Oh, we've established that there can be restrictions, now we're just quibbling about where to draw the line".
I’m asking what is clearly protected. I don’t oppose the 2A as currently interpreted, I just think there’s more nuance than many seem to acknowledge. For example, I don’t believe the 2A supports the expansive weapons ownership
rulesguaranteed rights that many libertarians would like, even though I think some of those rights would be fair. I think it maybe allows states to allow very free weapons ownership, but it doesn’t force them to.Any thoughts on whether the First Amendment forces states to allow willynilly use of the press or just gives them the option of allowing privately held journalistic enterprises if they think it's a good idea?
I think the First Amendment certainly allows states much more control over speech than was decided in the 20th century. In general I see much of the core 20th century SCOTUS decision-making as self-serving, in that it vastly expanded the nominal authority of the constitution, thus (because amendments are so hard) enshrining the Supreme Court as by far the most powerful institution in the United States, granted near unlimited authority in “interpreting” a vague 18th century document according, mostly, to the political principles of those who nominated them to that body.
But yes, I’d like to see speech rights, weapon rights, civil rights, voting rights (I think states ought to be free to determine how and who they send to Congress), and really almost everything else devolved back to the states, although I concede it’s unrealistic. If Utah wants to be a Mormon theocracy under the literal control of the LDS Church, that sounds like an interesting model of government that I think would be fascinating to have in the US.
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I don't think selective incorporation is consistent; the Second is as enforceable against the states as the First or the Fourth.
There's really very little nuance in "shall not be infringed". Appeals to nuance in this case, like so many others, are an attempt to say "You have the right to keep and bear arms, but..." and nothing before the "but" matters.
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