jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
Oh, I quite agree that SCOTUS isn't going to change its mind on that. But it doesn't have to. What needs to be articulated is what specifically defines the boundaries of the right (it is that the right has boundaries that makes it "not absolute"). And that's exactly what I've been arguing. The boundaries of a right are defined by the combination of where they clash with other rights and the principles, understood by the founders, that define its scope.
That is certainly the case, but it has specific implications that they either have to walk back or which contradict your argument about inclusion of government weaponry.
Military weapons are not commonly used as part of society in part because the circumstances that dictate their use are rare (as is the case with artillery), in part because some such weaponry is very expensive, but also in part because the government has passed laws effectively banning them. Which one dominates surely depends on the weapon. Take the M-16, for instance. I dare say that most AR-15 owners would prefer a select-fire weapon like the M-16 over a pure semiautomatic weapon like the AR-15, all other things being equal, because the M-16 is more flexible. The automatic capability doesn't have to be used, but it's there if you need it. This means that if the M-16 were available, it (and weapons patterned on it), and not the AR-15, would be the most popular rifle in America.
Like I said, the presence of a law cannot bootstrap its own Constitutionality. But that's exactly what the Court's claim here ultimately results in.
If a "commonly used" test is insisted upon, then certainly police weapons should be included. But that's not sufficient. Remember: any ban or regulation that would have prevented ownership by the founders of any of the weapons they used to win our liberty is automatically invalid for that reason alone. But keep in mind your own argument (which I agree with) that it is originally understood principles which define the boundaries of the right, and one of those principles is that the militia must never be denied possession of those arms necessary and sufficient to defeat a tyrannical government that is armed with contemporary government weaponry. The founders clearly understood that a primary role of the militia was to ensure that the State would remain free, and the 2nd Amendment explicitly says as much.
Why would the government of California (or Hawaii, or Maryland, etc.) prohibit the AR-15 in its standard form when we know they're commonly used throughout the country (it is impossible to argue against that proposition, seeing how the AR-15 is the most popular semiautomatic rifle in the U.S.)? Why would various state governments ban magazines that can hold over 10 rounds when such magazines comprise the majority of magazines in the U.S.? You should know better than to ask why a government would ban something that's in common use, as if the common use of something were sufficient unto itself to prevent it from being banned.
Moreover, if "common use" were truly sufficient to keep the government from banning something, then the "common use" test would be superfluous, and there would be no need for the Supreme Court to articulate such a standard at all. By your argument, there would be no need to ask whether or not a banned arm is in common use: the mere presence of the ban would be sufficient to tell you that it's not.
Your argument here amounts to the claim that governments never violate the "common use" test, which is of course a rather laughable proposition.
No, the reason the law was able to pass was because how they were used by a small minority of the population instilled sufficient fear to prevent sufficient resistance to the ban. This is actually no different from the vast majority of bans we've seen.
It is enormously rare in practice for criminal use of a weapon to be greater than its use by law-abiding citizens. This shouldn't be a surprise: criminals comprise a very small portion of the overall population (about 0.7% of the population is incarcerated), and violent criminals comprise a small minority of that (about 1.5% of adult arrests are for violent crimes).
Furthermore, nearly every liberty that is exercised is exercised by a minority of the population. As such, sufficient resistance to government edicts of any kind is automatically very difficult to muster. This makes bans, even of commonly held items, significantly easier for the government to pass than one might otherwise expect.
Feel free to offer a non-numerical argument about what "common" means, that isn't somehow arbitrary. As regards "common" or "typical" or "usual", I can think of no argument that can possibly manage to avoid use of numbers of some kind, whether they be rates, percentages, counts, or whatever. It looks to me that use of those terms without reference to such things makes their use arbitrary, i.e. dependent solely upon the judgment of the individual who is assessing whether or not something is "common", "typical", "usual", etc.
Honestly, I consider the "common" test to be arbitrary on its face. I can think of no articulation of such a standard that wouldn't be arbitrary in some manner.
And yet, we have plenty of them.
I would most certainly agree with this (though I'd phrase the second part "without restricting legitimate uses any more than absolutely necessary", since "unreasonably" is totally subjective and thus not a proper standard for use with Constitutionally-protected rights), and perhaps we should hash that out so as to formulate a powerful argument for it that can later be used in an amicus brief.
But keep in mind one thing: the 2nd Amendment overrides everything the government might do to prevent criminality that would conflict with, at a minimum, the stated purpose of the 2nd Amendment. Put another way, it is impermissible for the government to regulate arms in such a way that the militia can no longer maintain the security of a free State.
One of the things that tends to override rights is public safety. I would not categorize it as a right. In the judicial scrutiny process there is some government interest that is able to override constitutional rights. The higher the scrutiny level, the more important and compelling the interest needs to be. Public safety happens to be one of the more compelling government interest.
I have never claimed that the government can never violate a common use test. If the government is commonly using it then by definition it is in common use. I doubt you will find a police department without "large capacity magazines" (in excess of some state limits). ARs and other so called "assault weapons" (see various state laws for definitions), while not as common, are often used as secondary weapons when something more than a pistol is needed. When you evaluate why the government banned a certain arm you will find a disconnect between what they are saying and what they are doing. The government is commonly using those arms.
The military was way more integrated into society during the founding. Some of it was because of necessity. We simply could not afford a separate army. Nor did we really want a separate army. The military was used as part of law enforcement. One of the three reasons to call forth the militia is to execute the laws of the union.
Today the military is very separate from society. I suspect this separation is part of the reason Heller made a distinction for military arms. Given todays society, it is harder to make a common use argument for military arms. I would also point out that artillery and tanks are not that difficult to acquire so long as the appropriate paperwork is filled out.
If unreasonable is not a proper standard for Constitutional rights then why does the 4A use the term?