Ruth Marcus is deputy editor of the Washington Post and is a consistent voice for sanity and reason. In this article, she describes one of the worst federal court decisions ever. If this decision is upheld by the Supreme Court, we will all need guns to protect ourselves. Good news for the gun industry, bad news for public safety. Marcus wrote this article before the latest school shooting in Nashville, where three adults and three children were murdered. The killer was armed with three weapons, including an AR-15, which has no purpose except as a killing machine. Hunters don’t use it because it destroys what it kills.
She writes:
When the Supreme Court ruled in 2008 that the Second Amendment protects individuals’ right to gun ownership, it emphasized the ability “of law-abiding, responsible citizens to use arms in defense of hearth and home.” When it expanded that decision last year in New York State Rifle & Pistol Association v. Bruen, the court noted that “ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense.”
Zackey Rahimi was, one presumes, not the kind of upstanding citizen the justices had in mind.
Over a six-week stretch from December 2020 to January 2021, Rahimi took part in five shootings around Arlington, Tex. He fired an AR-15 into the home of a man to whom he had sold Percocet. The next day, after a car accident, he pulled out a handgun, shot at the other driver and sped off — only to return, fire a different gun and flee again. Rahimi shot at a police car. When a friend’s credit card was declined at a fast-food restaurant, he fired several rounds into the air.
Or, as the U.S. Court of Appeals for the Fifth Circuit put it in vacating Rahimi’s conviction for illegal gun possession, “Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal.”
This is the insane state of Second Amendment law in the chaotic aftermath of Bruen. The problem isn’t that decision’s precise outcome, striking down New York state’s gun licensing law because it required a showing of “special need for self-protection” to obtain a concealed carry permit.
The problem is that in doing so, the six-justice conservative majority imposed a history-based test — a straitjacket, really — for assessing the constitutionality of gun laws. No longer can judges decide whether restrictions are a reasonable means to protect public safety.
Instead, they have to hunt down obscure, colonial-era statutes to determine if there are counterparts to modern rules. So it’s little surprise that conservative judges in the lower courts are now busy declaring all sorts of perfectly sensible gun laws unconstitutional.
Those cases are just making their way to the appellate level, and Thursday’s ruling by the Fifth Circuit is one of the earliest to be decided. The court may be the most conservative — and most dangerous — in the country. The ruling in Rahimi’s case, written by one Trump-appointed judge, Cory T. Wilson, and joined by Trump appointee James C. Ho and Reagan appointee Edith H. Jones, shows why.
When Arlington police searched Rahimi’s home, they found multiple guns — and a domestic violence restraining order imposed after Rahimi allegedly assaulted his ex-girlfriend. Federal law prohibits those subject to such orders from possessing guns, and Rahimi was indicted by a federal grand jury.
Before Bruen, the Fifth Circuit had upheld such charges against constitutional challenge, and it had previously rejected Rahimi’s claim that the law violated his Second Amendment rights. But on Thursday, it did an about-face.
“We know the increased risk women in abusive relationships face when the abuser has a gun, and the Fifth Circuit just essentially greenlighted arming domestic abusers,” Adam Skaggs, vice president of the Giffords Law Center, told me. “As a matter of public safety, this is a horrendous decision.”
Wilson, who was a fervent opponent of gun regulation as a Mississippi state legislator, strained to read the Supreme Court’s language about law-abiding citizens out of the precedents. That was just “shorthand,” he insisted, and “read in context, the Court’s phrasing does not add an implied gloss that constricts the Second Amendment’s reach.”
This is simply wrong. As the Justice Department argued, the court in Bruen emphasized that “nothing in our analysis” threatened licensing laws in 43 states, which, the court said, “are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’” Such as, say, Texas, which prohibits those subject to domestic violence protective orders from obtaining licenses.
Wilson was having none of it. Under the government’s approach, he asked, “Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle?”
Seriously? This isn’t about political correctness. It’s about a man accused of dragging his girlfriend into his car, shooting at a witness who saw him assault her, and warning the girlfriend that he would shoot her if she told anyone what had happened.
As to historical analogues, Wilson acknowledged that there were “laws in several colonies and states that disarmed classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves, and Native Americans.”
But, he said, despite some “facial similarities” with laws disarming domestic abusers, “the purpose of these ‘dangerousness’ laws was the preservation of political and social order, not the protection of an identified person from the specific threat posed by another.”
As Pepperdine law professor Jacob Charles pointed out on Twitter, this criticism is “absolutely bonkers” — it faults the domestic abuse law for being “too tailored.” The law applies to those who have been determined, after a court hearing, to present a “credible threat to the physical safety” of an intimate partner or child.
All of which serves to underscore the real difficulty with the Supreme Court’s history fetish: As Bruen itself demonstrated, the matter of what historical examples to accept and what to reject is open to manipulation by judges predisposed to strike down gun laws.
And it poses a dilemma for the conservative justices, who are about to find this issue back in their laps. Are they going to instruct lower courts they have gone too far, or are they going to let it rip, while bullets fly and judges scour statutes from the age of muskets?
“Are they going to instruct lower courts they have gone too far, or are they going to let it rip, while bullets fly and judges scour statutes from the age of muskets?”
The answer appears all too clear.
I’ve said it before and I’ll say it again: The fact that the Framers could not envision high capacity weapons when writing the second amendment is irrelevant. That was never an issue and by arguing it. Proponents of gun safety who accept this a prima facie have already lost the battle. Nor is the argument that guns are a constitutionally protected right the individual reserves to fight an oppressive government. Both are lies.
The second amendment was put into the Bill of Rights to give citizens a means to join together to protect the nation in times of crises. A wild proliferation of guns put the existence of the nation at risk. That is what the Framers wanted to prevent. If any argument with guns does not begin there, it is illegitimate.
“the Framers could not envision high capacity weapons when writing the second amendment is irrelevant.”
GregB calls this statement a “lie.”
Does he have some kind of proof that the Framers could – indeed – envision AR-15-style weaponry??
They couldn’t envision a lot of things that would be affected by future constitutional interpretation. Not sure I understand your point. Indeed, to play a “what if” game, had the Framers known that people could have gotten repeating fire weaponry, they might have liked it more because it would further have lessened the need for a standing army since they would have massive advantages in fire power. The Framers feared a standing army almost as much as the mob. They saw both as fundamental threats to self-governance. Again, protection and preservation of the democratic-republic were the goal. So I stand by the “lie” statement.
GregB, the point is that – in fact – contrary to your statement, the Framers could NOT possibly have envisioned a high-capacity weapon like the AR-15, just like they could not possible have envisioned computers or cell phones.
As Max Boot put in The Post five years back,
“In 1791, when the Second Amendment was adopted, the state-of-the-art firearm was a flintlock musket firing paper cartridges loaded with gunpowder and a lead ball…Nikolas Cruz came with an AR-15 rifle, which typically comes equipped with 30-round magazines and can easily fire 45 rounds per minute…courts have consistently upheld gun regulation, including a federal assault-weapon ban that was in effect from 1994 to 2004 and a Maryland ban that went into effect in 2013… If the United States had been under assault from Muslim terrorists, [Republicans in Congress] would have acted long ago…apparently homegrown mass murderers are of scant concern though they kill far more people than terrorists do.”
https://www.washingtonpost.com/opinions/the-second-amendment-is-being-turned-into-a-suicide-pact/2018/02/15/632f702c-128e-11e8-9570-29c9830535e5_story.html?hpid=hp_no-name_opinion-card-a%3Ahomepage%2Fstory&utm_term=.a8b6c26a9f49
“. . . including an AR-15, which has no purpose except as a killing machine. Hunters don’t use it because it destroys what it kills.”
And AR-15 is a semi-automatic rifle just as almost all rifles are semi-automatic. It is not an AK-47 which is a fully automatic weapon although it looks like one. Very few people own fully automatic weapons.
And yes it is used for hunting as the round is not that large but due to it’s velocity can easily take down a deer. . . which my son has done with his AR-15 that he legally made from parts bought. It caused no more damage than his .243 caliber rifle. It is a fully registered, legal weapon. I’ve done a little target shooting with it. It is no different than his .243 deer rifle or the many other rifles used in hunting as they are not fully automatic.
Using false information does not make a good argument.
The Ar-15 was developed as a weapon of war. It was developed specifically for its lethality.
You can read all about it here:
“The AR-15 wasn’t supposed to be a bestseller…it was originally designed as a soldiers’ rifle in the late 1950s…’An outstanding weapon with phenomenal lethality,’ a Pentagon report raved…few gunmakers saw it as a product for ordinary people…trade shows banished the AR-15 to the back…Today, the AR-15 is the best-selling rifle in the United States…Almost every major gunmaker produces its own version of the weapon.”
https://www.washingtonpost.com/nation/interactive/2023/ar-15-america-gun-culture-politics/?itid=hp-top-table-main_p001_f004
This weapon is sold by the same companies that produced it for the military. When they discovered they could sell far more to unsuspecting fools, they immediately upped their lobbying game and convinced stakeholders that the more sold meant the richer they would get. Follow the Benjamins…
You and the Post are confusing and conflating a semi-automatic AR-15 style with the fully automatic AK-47 rifle.
Duane, no one is conflating anything, other than you.
The AR-15 was, IN FACT, designed explicitly for the military and it was designed for lethality. The military taught soldiers to fire in short, semi-automatic bursts for better aim and control, and more damage.
Eugenes Stoner designed what became the AR-15. His family told NBC News this a while back:
“Our father, Eugene Stoner, designed the AR-15 and subsequent M-16 as a military weapon to give our soldiers an advantage over the AK-47. He died long before any mass shootings occurred. But, we do think he would have been horrified and sickened as anyone, if not more by these events.”
That was LOTS of mass shootings ago.
This is why Pentagon brass loved the AR-15 so much and it’s why the AR-15 is the weapon of choice for the people who commit mass shootings:
“A bullet from the AR-15 rifle is three times as fast and as powerful as a bullet from a handgun. The bullet tumbles, so it damages a lot more tissue than bullets that travel in a straight line through the body, said Dr. Peter Thomas, director of the trauma program at St. Luke’s University Health Network…’It doesn’t create a hole, it creates a cavity in the body,’ he said…The damage from a high-energy rifle is more serious and extensive than from a handgun, said Dr. Richard Sharpe, a trauma surgeon and former U.S. Navy doctor who served for more than two decades and was involved in combat operations. Treating such wounds requires the expertise and resources of a trauma center, where staff can triage quickly, draw from blood banks, stabilize patients, map out the bullet path and send people to surgery, he said…Patients shot with powerful rifles typically need more operations because of severe tissue damage, and also take longer to recover, said Dr. Jeremy Cannon, trauma medical director at the University of Pennsylvania Health System who served in Iraq and Afghanistan with the U.S. Air Force. Comparing AR-15 wounds to those inflicted by handguns, he said: ‘The workload that goes into each one of these patients is the equivalent of two to three patients combined.’…’The high-velocity bullet causes a swath of tissue damage that extends several inches from its path,’ Dr. Heather Sher, a Florida radiologist, wrote in The Atlantic shortly after the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, last year. ‘It does not have to actually hit an artery to damage it and cause catastrophic bleeding. Exit wounds can be the size of an orange.’ ”
https://www.mcall.com/health/mc-hea-ar-15-wounds-20190629-pttjqemgcrhkxmfm5pzsb7uq6u-story.html?outputType=amp&__twitter_impression=true
is it not the magazine capacity that is the biggest problem in regard to mass shoo0tings?
Yes and no. (God I sound like an adminimal or a lawyer with that answer) No, because it’s not the “biggest problem” unless you are talking only about the shooting itself, then yes it is because one can get off more shots without reloading. . . but reloading can only take a few seconds anyway if one knows what one is doing.
My .22 rifle holds 17 rounds but it would not be as effective in a mass shooting partly because reloading takes a long time in comparison to just pulling out an empty clip and replacing it with a loaded one. So it’s not just the magazine size but the type of magazine/clip that is important.
If you look at the size of a regular or long .22 shell, it’s small compared to the .223 cartridge.
Take a look here:
https://lynxdefense.com/22lr-vs-223/
Be that, my comment, as it may the fact is that until this country rejects its love affair with the death and destruction machine that is the US Military and our aggressive belligerent foreign policies in utilyzing that death and destruction machine, until we fight our way out from under the iron hand of the Military Industrial Congressional Complex we can look forward to many more shootings and death and destruction. Karma is a bitch!
If I understand you correctly, “this country[‘s]…love affair with the death and destruction machine” have nothing to do with the misinterpretation of the second amendment and love for guns? Is that correct? And do you accept the false argument that the intention of the second amendment was so that the individual could protect himself (only he then) from government tyranny?
No, it’s not correct. You’re lumping my thoughts in with what I call gun nuts’ thinking. And no, I do not accept that argument. Again you are confusing and conflating two very different thoughts.
Should I assume that you love your death and destruction machine, the US military?
Not at all, but you obviously love your death and destruction as long as it comes from a false interpretation of constitutional principles and closing your eyes to the real world.
Thanks again for misinterpreting my writings. You’re well schooled in that regard.
What makes your interpretation of the 2nd amendment the correct one?
Nothing!
I fully see the real world and know that you don’t, other than everyone’s real world is their own personal experience, nothing more or less. And that real world dies when the individual dies. So be it.
I read a lot of history. You should try it. It’s not my interpretation. It’s the one you choose to ignore with inane discussions about what size of this or that fits a legal definition when we have an out of control problem that no other nation on earth has. That’s no misinterpretation. Your views on guns are ridiculous and not grounded in any sort of logic. Just wanted to make sure that too was a factual statement.
You’re not the only one who has read/reads a lot of history. I am not ignoring what you say, I am adding more information which you apparently don’t like. Asi es.
And that “out of control problem” stems from America’s love affair with death and destruction, both here and abroad. Why do you deny that fact?
Have you been taking rhetorical lessons from the reich wing MAGA folks?
Poor Duane, even that remark is beneath what little logic you can muster on this issue. Fire away!
Sorry can’t fire away as I am not at a safe shooting location or hunting.
I’m surprised you don’t see the connection between Americans’ love of guns and their love of a powerful military.
Certainly the corporate love of both…
That is the connection I have been making for many years now.
Even if everyone was heavily armed and carried loaded firearms in their hands all the time, those who shoot first, because they want to kill innocent people of all ages, will still kill innocent people before those targets have time to shoot back.
As a U.S. Marine, I’ve been in combat and I tell you that being armed and trained is not a guarantee you will be alive to shoot at who shoots at you first.
Several times when shot at in Vietnam from the other side, those rounds came way too close, and we didn’t even see who shot at us. It doesn’t matter how much firepower you have, if you can’t see who is shooting at you, there is little you can do to defend yourself.
When gun rights advocates claim that a gun is a defensive weapon, I find that illogical. A bullet does not stop a bullet unleashed.
When and where does this madness end???????????
It only ends for the people who die in shootings. A great example of an Isaac Bashevis Singer short story in which fallen angels get consigned to life in hell, which is life on earth.
Here is my snarky letter to Senator Mike Braun [R-IN]. He ALWAYS says that the Second Amendment must not be taken away from citizens. The number of mass killings of adults and children never matters to him.
Subject of your message: NRA-ILA’s Annual Leadership Forum, held in Indianapolis on April 14, 2023, is one of the most politically significant and popular events in the country…Have two questions that I want answered
Since you, Senator Braun, are one of the nation’s top Second Amendment leaders in government, perhaps you can answer these questions:
1.] Why don’t you DEMAND that firearms and firearm accessories be admitted to this politically significant and popular event? [U.S. Secret Service will control security within Hall A of the Indiana Convention Center] What do U.S. Secret Service people know? Guns make everyone safer. INSIST that each NRA member be allowed to bring in one or MORE guns! Media photos could be sent all over the world to confirm that 2nd Amendment lovers now have proven that guns can be safely brought into large meetings.
2.] Don’t you trust NRA members? All attendees will be screened through magnetometers before entry. WHY? Aren’t ALL NRA gun owners the good people who only shoot bad people? Look at how well you would be protected as you stand up and speak about the Second Amendment rights that belong to every American citizen.
NRA-ILA’s Annual Leadership Forum is one of the most politically significant and popular events in the country, featuring our nation’s top Second Amendment leaders in government, the media, and the entertainment industry.
Join our nation’s top Second Amendment supporters for the 2023 NRA-ILA Leadership Forum on Friday, April 14th.
Event Starts at 2:00 PM – Doors Open at 12:00 PM
Admission is free and will be first come, first served. Tickets are not required but you must be an NRA Member to attend. You may start lining up at 11:00 AM.
IMPORTANT: Security Information for the NRA-ILA Leadership Forum. Please read carefully.
U.S. Secret Service will control security within Hall A of the Indiana Convention Center and require attendees of the forum to be screened through magnetometers before entry. You will be subject to a search of your person and belongings.
Per the U.S. SECRET SERVICE, firearms, firearm accessories, knives, and other items WILL NOT BE PERMITTED in Hall A. For a full list of prohibited items, please click here. Read the list of prohibited items carefully before traveling to the event. You will not be allowed in Hall A with any of the items on this list. Attendees are strongly advised to not bring bags to help with timely security processing.
There is no storage available for firearms.
The Post did some recent reporting on the AR-15’s lethality. Read about it, and weep.
“The AR-15 fires bullets at such a high velocity — often in a barrage of 30 or even 100 in rapid succession — that it can eviscerate multiple people in seconds. A single bullet lands with a shock wave intense enough to blow apart a skull and demolish vital organs. The impact is even more acute on the compact body of a small child…The carnage is rarely visible to the public. Crime scene photos are considered too gruesome to publish and often kept confidential. News accounts rely on antiseptic descriptions from law enforcement officials and medical examiners who, in some cases, have said remains were so unrecognizable that they could be identified only through DNA samples.”
https://www.washingtonpost.com/nation/interactive/2023/ar-15-damage-to-human-body/
We need to do three things: Give up on getting rid of assault type weapons, but (1) impose a $100 or more yearly tax on large capacity magazines and require all of them be registered with both the state and federal governments. {they both should impose a high yearly tax on magazines} and make failure to register them and pay the tax a class 1 felony which cannot be plea bargained}. (2) Make a law that if one is committed of this class 1 felony they lose the right to own a firearm for life. and (3) make it a similar class 1 felony for anyone except law enforcement personnel to enter private property [including exterior property] without first obtaining written permission from the property owner or his leisee. Again make this felony one that cannot be plea bargained and conviction leads to confiscation of all the person’s firearms and makes them ineligible to purchase firearms in the future. Our right to be secure on and in our personal property is protected by the 4th Amendment. The wording off this amendment has always been clear, in the 2nd Amendment the original meaning of “well organized militia” meant the individual state militias, which are today called the National Guard and didn’t refer to some adhoc private organization.
This way we leave the 2nd Amendment alone and cut off the gun nuts at their weakest point.
Agreed. The 2nd Amendment pertains to militias, not individuals.