Is Kavanaugh, The Supreme Court, Or The First Circuit Right About The Second Amendment?
Is Kavanaugh, The Supreme Court, Or The First Circuit Right About The Second Amendment? By Mark Overstreet for The Federalist
In April, in Worman v. Healey, the United States Court of Appeals for the First Circuit, on appeal from the U.S. District Court for the District of Massachusetts, upheld Massachusetts’ ban on “assault weapons” and ammunition magazines that hold more than 10 rounds. Worman has been appealed to the Supreme Court, which will soon decide if it will take the case.
If the Supremes take the case, it will be interesting to see how they deal with it, not only for the obvious reason, but also because the district and appeals courts disregarded the high court’s rulings in District of Columbia v. Heller (2008), which struck down D.C.’s laws banning handguns and having any firearm in operable condition within the home, and McDonald v. Chicago (2010), which ruled that handgun bans are unconstitutional nationwide.
On the one hand, Heller found that the Second Amendment protects a “fundamental” right that, as the court observed in U.S. v. Cruikshank (1876), existed before the Constitution was adopted. Heller described it as “the individual right to possess and carry weapons in case of confrontation,” including “all instruments that constitute bearable arms.” (Of course, the amendment protects the right not only to “weapons,” but to “arms,” which Webster’s dictionary of 1828, cited by Heller, defined as “weapons of offense and armor for defense.”)
However, Heller erred in ways that could threaten the right to arms via Worman and beyond. As if the opinion were written by multiple people who gave no deference to what his or her co-authors had written—and it may have been—Heller contradicted its “all instruments” declaration, imposing two unsupportable limitations on the types of arms the Second Amendment protects the right to keep and bear.
The Supreme Court Misread Itself
As I have noted previously, Heller mischaracterized the court’s decision in U.S. v. Miller(1939) as holding that the Second Amendment protects the right to only such arms as are “in common use.” Instead, Miller cited the Tennessee Supreme Court’s decision in Aymette v. State (1840), that the Tennessee constitution protected the right to arms “usually employed in civilized warfare and that constitute the ordinary military equipment.” On that basis, Miller said the Second Amendment protects the right to arms that have a “reasonable relationship to the preservation or efficiency of a well regulated militia,” those that are “part of the ordinary military equipment,” and others the use of which “could contribute to the common defense.”
The first and third of Miller’s standards would encompass semi-automatic so-called “assault weapons” and magazines that hold more than 10 rounds used by civilians, including the unorganized component of the militia of the United States (see 10 U.S.C. 311). All three standards would encompass fully-automatic M16-series rifles and the same magazines used by the military and the militia’s organized component (the National Guard, when not under the plenary control of the federal government, per the Supreme Court’s unanimous decision in Perpich v. Department of Defense, 1990).