For the past several years, I have been trying to explain, to anyone who would listen, how Justice Scalia's conservative jurist majority opinion in Heller had re-affirmed a narrow scope as to what type of weapons were within the 2nd Amendment protections. See my discussion here, regarding a particularly brazen misreading of Heller by a very right wing judge in Southern California. In the post, I stated only the types of weapons in "common use" in 1791 were within the 2nd Amendment's protection, i..e. pistols and muskets/rifles, and basic modern handguns and rifles, not the particularly modern weapons, such as AR-15s, which fire, at the mere touch of a finger, a bunch of rounds in seconds. In that linked to post, I had admitted, however, with the death of Scalia and retirement of Anthony Kennedy, we may see an overruling of this portion of Heller.
Yesterday, I had a dust up on Facebook with a respected former law colleague, and big gun owner fan, over Scalia's use, in Heller, of the phrase "in common use at the time." The colleague said it meant currently, not historically. I showed, through a word or phrase search, there are five instances where Scalia used that phrase in Heller, and all were in historical contexts, not current contexts. Indeed, Scalia, at one point, discussing the US Supreme Court Miller case from over 80 years ago, spoke of the 2nd Amendment protecting those weapons which "were in common use at the time," again in a historical context, not a current context or context of the time of particular litigation. Had Scalia meant current use, he would have used a phrase such as "current use at the time of the litigation." Plus, Scalia would never have felt the need to explain, in detail, later in the opinion, that the singular fact there is now a vast gap between what the US military currently has in weaponry and what the 1791 militias had, does not change the narrow scope, and therefore gun owners can't get an "M-16 and the like," let alone a tank or Stealth bomber. Also, as noted in my initial linked to post from last year, pro-gun constitutional law professor Dave Kopel, would never have had to talk about whether multiple firing rounds were in "common use" in 1791 in his 2014 Washington Post article trying to make an argument to come within the Heller holding.
My colleague, again, a very bright lawyer, apparently decided to re-read Heller, and reached an initial "Ah ha!" moment, seizing upon different language from the early part of Heller, which reads:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
It was a gallant attempt, I thought. However, the language earlier in the opinion, as Scalia is warming up for the majority holding. Scalia is doing what judges often do in long, historically based opinions, which is to talk about what "some" say. Yes, the "bordering on the frivolous" phrasing is a hard one to get around. However, the language my former law colleague primarily focused on is the fragment in the last sentence, "...the Second Amendment extends, prima facie, to all instruments that constitute bearing arms, even those that were not in existence at the time of the founding."
"Prima facie," is a Latin term meaning, "at first view." Therefore, Scalia is merely setting us up for his continued referencing of the phrase "in common use at the time" in its historical context, and, again, talking about the wide gulf between what militias had at the time in 1791, and what the U.S. military has now, and why contemporary gun owners can't have what the military has now.
Game over, right? I mean, really. We can't believe the US Supreme Court is going to upset the Miller decision or the previously narrow scope of the 2nd Amendment, and open the door to people getting modern weaponry soldiers use in war. To think the 2nd Amendment allows us to bear arms that include modern weaponry is analogous to saying the First Amendment protects what is published on the Internet as much as a newspaper or a pamphlet misses a fundamental factual distinction. It is a difference of me carrying around my cellphone with Internet access and you carrying around a bazooka.
Well, enter Ms. Caetano, a homeless woman, hanging around in Massachusetts, who was in a relationship with an abusive boyfriend, and who decided to borrow a friend's stun gun to protect herself from him. A Massachusetts law said a stun gun, which electrically shocks, but not necessarily kills (It may have killed me with my electrical heart issues, I say as an aside), is illegal to possess. The homeless woman was prosecuted under the law, and the case went to the Massachusetts Supreme Judicial Court, the top court in Massachusetts. The Court affirmed Caetano's conviction, holding in multiple places how stun guns were not in existence, let alone "common use," in 1791. See here for the unanimous Court decision. Again, game over, right? Heck, the Court even quoted from a 1980 Oregon Supreme Court case, which came to a similar conclusion as Scalia when interpreting Oregon's own version of the 2nd Amendment. In State v Kessler, 289 Ore. 359 (1980), the Oregon Court concluded its analysis of Oregon's constitutional gun guarantee, stating: "If the text and purpose of the constitutional guarantee relied exclusively on the preference for a militia 'for defense of the State,' then the term 'arms' most likely would include only the modern day equivalents of the weapons used by colonial militiamen." (Emphasis added). In Kessler, the Oregon Supreme Court said a person may own a club, and a law forbidding that violated Oregon's 2nd Amendment equivalent. Still, so far, so good for Scalia's majority opinion in Heller.
But....Scalia died in February 2016, while the US Supreme Court is considering Ms. Caetano's case. Less than a month later, in March 2016, the now Scalia-less Supreme Court issues a per curiam opinion summarily rejecting the Massachusetts high court. A per curiam decision is unsigned by any justice, and is issued without oral argument or extensive briefing. It is here where I think this per curiam decision did terrible mischief and effectively overruled Heller's limitation of the scope of the 2nd Amendment. The per curiam decision is only five paragraphs long, consistent with a summary decision. It states in pertinent part:
The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008) , and that this “ Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).
The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582.
Catch that? The U.S. Supreme Court used the "some say" paragraph containing the "prima facie" to erase the historical context of "in common use at the time" language throughout Scalia's Heller decision. Then, as with a club in the Oregon case of State v. Kessler, the Court disposed of the remaining arguments in allowing this homeless woman to use a stun gun to protect herself from an abusive boyfriend. The Court the stun gun could only be prohibited if it is both "dangerous and unusual," and, while relatively unusual, a stun gun is not as dangerous as a regular gun. The Court further held a stun gun it is not "readily adaptable to use in the military," say, as with an M-16 (and its predecessor, the AR-15) or AK-47. But my view about Scalia's limited scope argument in Heller being overruled is hinted at in the Alito-Thomas concurring opinion in this per curiam case. Those two Justices really want to take a club and a stun gun, not to mention an axe, to Heller's re-affirmation of the limited scope of weapons protected under the 2nd Amendment. That concurring opinion is a sight to read, as it challenges even the modern US military v. militia argument, where it states:
...(T)he Second Amendment therefore protects such weapons as a class, regardless of any particular weapon’s suitability for military use. 554 U. S., at 627; see id., at 624–625. Indeed, Heller acknowledged that advancements in military technology might render many commonly owned weapons ineffective in warfare. Id., at 627–628. But such “modern developments . . . cannot change our interpretation of the right.” Ibid.
Wow! Alito and Thomas appear to have reversed Scalia's U.S. military v. 1791 militia point in Heller. Scalia had written the fact the U.S. military has a whole bunch of deadlier toys does not change the limited scope of arms protected under the 2nd Amendment to the type of guns in common use in 1791.
Folks, fasten your seatbelts. Kavanaugh and Gorsuch, two bomb-throwing right-wing judges, have replaced Scalia and Kennedy, and I have little hope they will join the Court's liberals in saying, "Hey, wait a minute. Our 2016 decision in Caetano v. Massachusetts was decided in the wake of a dear friend's death, and concerned our wanting to protect a homeless woman who borrowed a stun gun to protect herself from an abusive boyfriend. We didn't agree with Alito's and Thomas' concurring opinion, and realize now there was a little mischief in how Heller was described in the per curiam opinion. You are not going to get us to agree that even military weaponry and weapons, such as the AR-15, which was the precursor of the M-16, are suddenly within 2nd Amendment protection." Nope. I don't see those two new justices saying that, unless they happen to discuss the case with their wives, and their wives say, "Whaaaat?"
So, here is the bottom line: I am still correct as to how to properly read Heller regarding the scope of weapons protected under the 2nd Amendment. Other high courts agree with that interpretation, i.e. the US Supreme Court in Miller, the Massachusetts high court in Caetano, and the Oregon Supreme Court interpretation of Oregon's own version of the 2nd Amendment in Kessler. However, I am now wrong in fact because a per curiam opinion in the US Supreme Court, issued less than a month after Scalia's death, without extensive briefing, has effectively reversed that portion of Heller, and made it much more difficult for states and the Congress to outlaw or prohibit various deadly weapons that have come into modern common use. Alito, Thomas, and their conservative brethren simply refuse to realize--at least not yet--the anarchic ramifications from such an effective reversal. For justices who think the Supreme Court's economic function is to enforce corporate power over society, they may find this type of reasoning they are employing will undermine society itself.
As I am wont to say, when shocked on Facebook, Wow.
