We also didn't get a standard to apply. I was predicting intermediate scrutiny, which in hindsight was quite stupid of me. The smart move for the Court to make was to punt the standard to the lower courts, so they get a chance to see how it goes before they pick a rule with the force of stare decisis. So my predictions get no points.
I wish I could say I was pleased with the decision, but the more I think about it, the more I'm troubled. The problem is in Justice Scalia's definition of the "arms" that are protected by the RKBA. Consider the following passages:
We think that Miller's "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia]service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same."
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."
It may be objected that if weapons that are most useful in military service--M-16 rifles and the like--may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, would would bring the sorts of lawful weapons that possessed at home to militia duty. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
The problem here is the limiting of the RKBA to apply to weapons "in common use" by civilians at the time. I preferred the straight up Miller approach, which implied that weapons that are "any part of the ordinary military equipment" or those the use of which would "contribute to the common defense" were within the scope of protection. The difference between these two standards is very slight, but has one crucial difference: The government doesn't get to decide which weapons "contribute to the common defense," but it absolutely can determine which weapons are "in ordinary use" by civilians. Case in point: If not for the National Firearms Act of 1934, weapons such as the M-16 and MP-5 would be in common use by civilians today. But because they are severely regulated, these weapons are not in ordinary use.... and are therefore ineligible for protection. The tail has wagged the dog. Looking prospectively, to ban weapons the government need only pick a weapon not in ordinary use (perhaps, for example, .50 caliber rifles), or regulate a weapon or class of weapons until the people stop ordinarily using it, making that new weapon or class of weapons eligible to be banned.
So, while on its face Justice Scalia and the majority have appeared to prevent the "extinction" of the Second Amendment, they have provided the government with a method to narrow the scope of the Second Amendment until it collapses into irrelevance.
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