MA Assault Weapons Ban upheld in US District Court for the State of Massachusetts

[pdsmith505]

Starting with the obligatory link to the ruling in question:

https://www.mass.gov/files/documents/2018/04/06/Worman dismissal-SJ ruling 4-6-18.pdf

Judge William G. Young (a Reagan appointee) stated, among other things:

The AR-15 and its analogs, along with large capacity magazines [>10 rounds], are simply not weapons within the original meaning of the individual constitutional right to "bear Arms."
Both their general acceptance and their regulation, if any, are policy matters not for courts, but left to the people directly through their elected representatives. In the absence of federal legislation, Massachusetts is free to ban these weapons and large capacity magazines. Other states are equally free to leave them unregulated and available to their law-abiding citizens. These policy matters are simply not of constitutional moment. Americans are not afraid of bumptious, raucous, and robust debate about these matters. We call it democracy.
Justice Scalia would be proud.

In his discussion on the scope of the second amendment:

As noted supra, the Supreme Court explained in Caetano that "Heller rejected the proposition 'that only those weapons useful in warfare are protected.'" [citation omitted here, and elsewhere]. Heller did not make such a rejection, however, in order to conclude that all weapons useful in warfare are protected. On the contrary, Heller rejected that premise because it would lead to the "startling" conclusion that "the National Firearms Act's restrictions on machineguns ... might be unconstitutional, machine guns being useful in warfare in 1939." Thus, as Heller concluded, it cannot be that "only those weapons useful in warfare are protected," because some of those weapons are not protected. Id. Weapons that are most useful in military service, as Justice Scalia later observed, fall outside the scope of the Second Amendment and may be banned.

 

[Frank Ettin]

The good news is that a district court ruling isn't precedent and applies only in the case.

 

[pdsmith505]

Edited to re-insert the closing sentence (part of the first quote) minus my personal commentary, since it is, after all, part of the ruling.

 

[AlexanderA]

Yup, Heller is the gift that keeps on giving to the antigunners.

 

[alsaqr]

20 years ago MA gun owners made a pact with the devil. In exchange for few concessions they agreed to make the MA "assault weapons" ban permanent.

Now a gun hating AG has re-interpreted the "assault weapons" ban. Not surprisingly her interpretation held up in court.

 

[pdsmith505]

So, in an attempt to follow the logic of this ruling with regards to long-arms...

In 1777, the "British Short Land Service Musket (Brown Bess)" was the arm most suited to military use:


In 1812, it was the "U.S. Musket Model 1795":


Then, in the mid 1800's, it was the U.S. Model 1842 Musket:


Then, in the late 1800's, it was the Springfield Model 1861 rifled musket:


Then, something along the lines of the Springfield 1884 trapdoor rifle:


Then, circa WWI, it was something like the M1903 bolt-action (might have missed a lever action cavalry gun, not entirely sure):


Followed by the, circa WWII, M1 Garand:


Then the M-14:


Then, finally, the M-16 and it's varients:


Are we to assume that Scalia, in Heller, intended for the people to always be one step behind the military in terms of firearms technology? That seems to be the interpretation that the Judge espoused here... as far as I can tell. But, if, for example, an energy-weapon (laser, railgun, etc) that out-classed a machine gun were developed, then the NFA would fall... and that would be contrary to the ruling in Heller.

Or is it that longstanding laws barring the ownership of fully-automatic weapons is the litmus test? However, if this was the judge's logic, then the AR-15 would not be most suitable for military use, being semi-automatic, and should have passed his test.

Or is any historical type of firearm used by the military the standard? This certainly can't be, since the firearm in question in the Heller case was a revolver, and revolvers were certainly at one time the most suitable side arm for military use (for example, the M1847 Walker)...


In my opinion, there is no logical way to rectify the opinion issued by Judge Young with the precedent established in Heller.

 

[ClickClickD'oh]

Good god, the ruling is factually wrong from the very first sentence. That has to be some sort of record.

 

[Zoogster]

So he incorrectly cites Heller and ignores McDonald and incorporation?

We are in trouble if we can't even win defensively with all three branches of federal government under the control of the more pro-firearm party.
This is supposed to be a time we are passing pro-gun legislation, not fighting off anti-gun legislation.
If you can't erase ground the antis take when they are in power before they take more when they get back into power, you are doomed to only lose ground.

Just a couple years ago Trump's son was going to change the NFA and rewrite some gun laws for suppressors and other things.
I would say the other side really is doing a great job to fund and stir up all this anti-gun sentiment now and prevent losing ground, and keep the president mired in legal battles and scandal instead of getting things done.
Because even just staying where we were and not losing any ground would have been a loss because when who is in power flips they will be on the attack.

 

[readyeddy]

Dicta at page 627 of the Heller opinion mentions "M-16 rifles and the like".

 

[denton]

As pdsmith505 says, there is no condition in Heller that says that all military arms are outside 2A. That would be absurd. The reasoning seems to be....nonsequitor .

 

[jdc1244]

So he incorrectly cites Heller and ignores McDonald and incorporation?

We are in trouble if we can't even win defensively with all three branches of federal government under the control of the more pro-firearm party.
This is supposed to be a time we are passing pro-gun legislation, not fighting off anti-gun legislation.
If you can't erase ground the antis take when they are in power before they take more when they get back into power, you are doomed to only lose ground.

Just a couple years ago Trump's son was going to change the NFA and rewrite some gun laws for suppressors and other things.
I would say the other side really is doing a great job to fund and stir up all this anti-gun sentiment now and prevent losing ground, and keep the president mired in legal battles and scandal instead of getting things done.
Because even just staying where we were and not losing any ground would have been a loss because when who is in power flips they will be on the attack.

The president is mired in legal battles and scandal the consequence of his own doing, not that of the ‘other side,’ nor having anything to do with a district court’s ruling concerning the constitutionality of a state’s assault weapon ban.

Moreover,

“Both their general acceptance and their regulation, if any, are policy matters not for courts, but left to the people directly through their elected representatives. In the absence of federal legislation, Massachusetts is free to ban these weapons and large capacity magazines. Other states are equally free to leave them unregulated and available to their law-abiding citizens. These policy matters are simply not of constitutional moment.” ibid

This is fundamental conservative legal dogma, that regulatory policy is the purview of the political, not judicial, process – and residents of the State hostile to the assault weapon ban should seek its repeal at the ballot box, not in Federal court; conservative legal dogma propagated by the “more pro-firearm party.”

 

[Zoogster]

I guess that is what the freer states are hoping for huh? To be left alone while the ones all around slowly get more restrictive until they lose their rights too?
It is not going to work, once enough people are not well armed the government has no fear of the people and will tell you what you are going to do. First up, give up some of your guns, starting with any close to equal with what the authorities that will enforce the taking of the rest of them will be armed with.

 

[denton]

Dicta at page 627 of the Heller opinion mentions "M-16 rifles and the like".

This is what it says:

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, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. 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.

 

[denton]

From the author of the Heller decision:

In the 2015 Friedman v. City of Highland Park case, Justice Scalia joined a dissent which stated that the decision by millions of Americans to own AR-style rifles for lawful purposes ‘is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.’

 

[readyeddy]

Good quotes. It would make sense to distinguish M-16 rifles from the AR type rifles so that the AR is not “like” the M-16. The hypothetical in Heller follows a discussion of banned/regulated full auto firearms so it’s reasonable to make the distinction.

 

[AlexanderA]

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, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. 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.

Word salad. I read this excerpt, and I can't make any sense of it. The first part is correct -- under the Heller reasoning, the 2nd Amendment right is completely detached from the prefatory clause. In the rest of the excerpt, Scalia attempts to obfuscate that, and he fails. The Court just flat did not want to legalize machine guns, and Scalia engaged in mental gymnastics to arrive at that result, while grudgingly acknowledging a minimal 2nd Amendment right.

The Heller case cannot be cited to support ownership of AR-15's, regardless of the fact that they are semiautomatic rather than fully automatic, and regardless of whether or not they are in "common use." That's because, under the Heller case, there is no longer even a tenuous militia connection to the RKBA. (The lower federal courts have consistently ruled that way, and the Supreme Court has refused to revisit the matter.)

 

[AlexanderA]

Good quotes. It would make sense to distinguish M-16 rifles from the AR type rifles so that the AR is not “like” the M-16. The hypothetical in Heller follows a discussion of banned/regulated full auto firearms so it’s reasonable to make the distinction.

Come on. Let's be honest here. The lack of an auto sear does not make an AR-15 much less militarily effective than an M16. Even the military uses the full-auto capability only in limited circumstances. (It wastes ammunition.) I own both semi AR-15's and full-auto M16's, and I would not feel notably undergunned carrying an AR-15. (The key thing for effectiveness is magazine capacity, not full-auto capability.)

 

[jmorris]

...in order to conclude that all weapons useful in warfare are protected. On the contrary, Heller rejected that premise because it would lead to the "startling" conclusion that "the National Firearms Act's restrictions on machineguns ... might be unconstitutional, machine guns being useful in warfare in 1939." Thus, as Heller concluded, it cannot be that "only those weapons useful in warfare are protected,"

Isn’t that kind of like saying, “It can’t be morning because I am still sleeping.” So someone created an infringement so you make the case you can further infringe...

It’s pretty obvious that any law that places any limit is an infringement by definition or the word infringement. Right or wrong about how you feel, that is pretty indisputable. That said “We” have exceptions in other areas of the Constitution as well.

 

[Spats McGee]

I have't had time to read the entire opinion, but I find the quote that I've seen about these policy matters not being "of constitutional moment" to be awfully disturbing.

 

[denton]

Word salad. I read this excerpt, and I can't make any sense of it. The first part is correct -- under the Heller reasoning, the 2nd Amendment right is completely detached from the prefatory clause. In the rest of the excerpt, Scalia attempts to obfuscate that, and he fails. The Court just flat did not want to legalize machine guns, and Scalia engaged in mental gymnastics to arrive at that result, while grudgingly acknowledging a minimal 2nd Amendment right.

The Heller case cannot be cited to support ownership of AR-15's, regardless of the fact that they are semiautomatic rather than fully automatic, and regardless of whether or not they are in "common use." That's because, under the Heller case, there is no longer even a tenuous militia connection to the RKBA. (The lower federal courts have consistently ruled that way, and the Supreme Court has refused to revisit the matter.)

In very broad strokes, as I read Heller, Scalia first addressed the operative clause, then the prefatory clause, and in the quote I posted was addressing the issue of alleged disconnects between the two. His conclusion was that even though circumstances have changed, and the two clauses do not connect as well as they once did, the guarantee granted by the operative clause still stands.

I think what he's saying is that just because civilians can't own M16s and the like, you can't conclude that the operative clause is nullified.

 

[AlexanderA]

I think what he's saying is that just because civilians can't own M16s and the like, you can't conclude that the operative clause is nullified.

He didn't nullify the operative clause; he nullified the prefatory clause. That's very important because if the prefatory clause were given due weight, it would mean precisely that civilians could own M16's and the like. That's the result that Scalia was trying at all costs to avoid. (If there was even a glimmer that machine guns could be legalized under the 2nd Amendment, I don't think Scalia could have mustered the 5-member majority for the favorable result for Heller.)

It all boils down to the politics within the Court. The majority of the justices are comfortable with people having handguns, but they are not comfortable with civilians having military weapons. (Even though the 2nd Amendment was originally all about military weapons.) And I believe they would treat AR-15's exactly like fully-automatic M16's. There's no distinction in their eyes.

 

[JTHunter]

Good god, the ruling is factually wrong from the very first sentence. That has to be some sort of record.

Exactly !!

For most of our history, mainstream scholarship considered the Second Amendment as nothing more than a guarantee that the several states can maintain "well regulated" militias.

 

[denton]

AlexanderA...

You and I are in violent agreement on one point: It was a very political situation within the Court, and I think Scalia went as far as he could and still get a favorable decision. If he had pushed for machine guns to be protected, he would not have been able to get a majority.

Scalia was a shooter from his youth, and he made Justice Kagan his shooting buddy while on the Court. That may yet turn out to be one of his better legacies. It will be interesting to watch.

I'm more optimistic about the distinction between machine guns and AR15s. I think Scalia illuminated that on P53, where he said:

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

The standard set forth in Heller is that all firearms that are commonly held for lawful purposes, and that are not peculiarly dangerous are protected. Scalia's later statement on the record that AR15s are protected just because millions of people own them for lawful purposes is very consistent with what he wrote in Heller.

The problem, of course, is that Scalia is gone, and sorely missed. I hope that Justice Gorsuch and one or two new Justices fill the gap.

 

[CapnMac]

I think what he's saying is that just because civilians can't own M16s and the like, you can't conclude that the operative clause is nullified.

AlexanderA makes pertainent points about this conclusion.

But, I suspect a finer point of jurisprudence is afoot here.

Because there is a hege dearth of 2d amendment jurisprudence about, all such opinions tend to open a can of worms.

So, to my reading, Scalia et al (and that was probably a very shaky coalition at best) knew that, had they kept the two clauses melded, that would have gutted NFA, and, quite likely, GCA 68, at a fell stroke. All of which was well outside the purview of Heller. And, being the originalist that Scalia was, he probably felt that the obvious gap left behind, to specifically and narrowly address Heller, was fertile ground for future decisions. Had Scalia lived, it would be fascinating to know where his poinion would have focused itself.

It's unfortunate, in my opinion, that n case came along to extend Heller in its ultimate direction (particularly in the face of DC's intransigent flaunting of the decision). Since that never occurred, now that lack is a cudgel to be used against us.

 

[Zoogster]

The fear of gutting the NFA and other restrictions the population had grown used to is why the court didn't visit 2nd Amendment cases for most of the 1900s. It was pretty well understood that the 2nd intended for the whole population to have arms capable of being used as a collective militia in their homes. It stems from how things used to operate.
When an invasion force comes or an enemy raid or attack is performed the local militia assembles, slows them down, if word could be sent for reinforcements and they were necessary a state based militia or even the standing army is assembled and sent, and then they unite with the militia.
The locals would need to deal with most things themselves and anything other than a siege would probably be over before help could arrive. Even if they lost or were defeated the stalling of an enemy meant the enemy defeated fewer towns and made less progress before more organized forces could arrive.

The militia was considered a poor fighting force for anything except local defense as high desertion rates were common if you tried to send them far from home. A standing army had to be raised for most offensive things.
The events of the French and Indian War that a lot of the founders had experienced heavily influenced their thoughts at the time. When towns and forts were subject to both organized attacks from an enemy as well as skirmishes and raids from enemy forces and criminal groups.