Kavanaugh: The Right To Keep And Bear An AR-15 Shall Not Be Infringed

Flopping Aces ^ | 07-12-18 | Daniel John Sobieski

[Starman417]

It’s not just the wrongly decided Roe V. Wade decision that liberals fear is in jeopardy with the nomination of Brett Kavanaugh. They also fear their crusade against “semi-automatic” weapons may be exposed as the semantic, visual, and judicial fraud that it is:

"If you care about common sense gun violence protection, Judge Kavanaugh is your worst nightmare. If you want background checks, a ban on assault weapons, or any of the other common sense measures that we have in Connecticut, or California or New York, Judge Kavanaugh will strike them down." said Sen. Richard Blumenthal, D-Connecticut, who used to clerk on the court. "That's in his record, it's indisputable."

"Give him a seat on this court, and you can say good-bye to the common sense measures in Connecticut, California and New York that have helped save lives," he added.

President Trump may very well have picked Brett Kavanaugh to be his second nomination to the Supreme Court based on his clear thinking opinion that there is no asterisk next the phrase “right to keep and bear arms” that says it is okay for that right to be infringed based on a “scary” appearance or advancements in technology:

Kavanaugh, who has served on the U.S. Court of Appeals for the D.C. Circuit since 2006, dissented from a 2011 decision in which a three-judge panel upheld the District of Columbia's ban on so-called assault weapons and its requirement that all guns be registered. Kavanaugh disagreed with the majority's use of "intermediate scrutiny," saying an analysis "based on text, history, and tradition" is more consistent with the Supreme Court's Second Amendment precedents.

The D.C. "assault weapon" ban covers a list of specific models as well as guns that meet certain criteria. A semi-automatic rifle that accepts a detachable magazine is illegal, for instance, if it has any of six prohibited features, including an adjustable stock, a pistol grip, or a flash suppressor. "The list appears to be haphazard," Kavanaugh noted. "It bans certain semi-automatic rifles but not others—with no particular explanation or rationale for why some made the list and some did not." In any case, he concluded, the law is inconsistent with the landmark 2008 case District of Columbia v. Heller.

"In Heller," Kavanaugh noted, "the Supreme Court held that handguns—the vast majority of which today are semi-automatic—are constitutionally protected because they have not traditionally been banned and are in common use by law-abiding citizens. There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semi-automatic rifles. Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent crimes far more than semi-automatic rifles are. It follows from Heller's protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.'s ban on them is unconstitutional."

When the Constitution was written the both the government and the people had the same weapon – the musket – which could be called the semi-automatic weapon of its day. The Second Amendment did not come with an asterisk nor is any of our rights enshrined in the Constitution in any way dependent on technology. Judge Kavanaugh seems to recognize that fact.

When the Constitution was written the musket was in common use as a personal weapon and was useful as a weapon of war. There was no such distinction when the Second Amendment was written. Supporters of “sensible restrictions” on gun ownership make the argument that the Second Amendment does not protect the right to bear an M-1 Abrams tank. That is a nonsense argument. Try to buy a functional fully-armed tank, or a nuclear weapon Who will sell you one?

Tanks are designed to be used against other tanks. Guns that fire bullets one at a time such as the AR-15 are useful both in war and peace and are in fact in “common use” by the civilian population of the United States.

Former Navy SEAL Dean Raso is quoted in The Federalist as describing the AR-15 as in fact the ideal defensive weapon against heavily armed predators:

In the wake of the Orlando terrorist attack, the deadliest strike on U.S. soil since 9/11, Democratic lawmakers and progressive activists have responded by attempting to limit access to firearms — particularly the AR-15, which was incorrectly reported as the weapon the terrorist used to kill at least 49 people and injure another 53.

In a new video, former Navy SEAL Dom Raso explains why the AR-15, the most popular rifle in the country, gives Americans the best chance of surviving in an age of terror.

Choosing to defend one’s home with an AR-15 is a commonsense choice, as it is powerful, accurate, and easy to shoot, Raso said.

Gun control legislation doesn’t stop terror attacks, he explained, citing the two terrorists who who weren’t deterred by California’s assault weapons ban when they killed 14 people in San Bernardino last year. Nor would any gun ban have stopped the Boston Bombers when they detonated a bomb at the Boston Marathon, killing three and wounding at least 260 others.

Ironically, both of those incidents of terror were brought to a stop by armed police officers responding to the scene with AR-15s–the same weapon legislators are trying to ban.

“Why would you want to ban the gun you pray for police to show up with?” Raso asked.

Indeed, why would you? As one wag put it, a gun in the hand is betters than a cop on a phone and the response time for a bullet from an AR-15 fired in self-defense is a lot quicker than calling 911. Other non-scary weapons are just as lethal and the AR-15 has been chosen by popular demanded as the defensive weapon of choice, despite a nonsensical ruling by one federal judge:

[Ancesthntr]

First off, the Court did say that the government had the power to tax (or, at least, didn’t say that it didn’t, because of the militia arms thing). I agree with you that it IS an infringement - the tax was equivalent to about $5,000 today, and there was a Depression in full swing at the time. It was calculated to basically price the average person out of the market - with either the rich not caring (and they generally didn’t go around shooting up banks or fomenting revolution), and the criminals caring less. Once again, a law aimed at the law-abiding, the only ones who would both obey and care. What if they put a $50,000 tax on today, would that infringe? You betcha!

FYI, that analysis that I read indicated that the District Court judge ruled as he did, because he WANTED that case kicked upstairs, and wanted the result that later came down. He was a New Dealer, and had previously been a Congressman who supported gun control. Here’s what the article had to say:

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“The newspapers assumed Miller was a “test case of the National Firearms Act.”109 They were probably right. The government needed a Supreme Court precedent holding that federal gun control does not violate the Second Amendment. Ragon teed up the case. Ragon did not really think the NFA violated the Second Amendment, and probably colluded with the government to create the ideal test case. His opinion is peculiar on its face, begging for an appeal. A memorandum disposition is appropriate when deciding a routine case, but not when holding a law facially unconstitutional. And Ragon was the first judge to hold that a federal law violates the Second Amendment, even disagreeing with a Florida district court that had dismissed a Second Amendment challenge to the NFA.110

Before he became a judge, Ragon represented the Fifth District of Arkansas in Congress from 1923 to 1933.111 As a congressman, he was a vocal advocate of federal gun control. In 1924, Ragon introduced an unsuccessful bill prohibiting the importation of guns in violation of state law,112 and vigorously supported another bill prohibiting the mailing of most pistols, which eventually passed in 1927.113 Basically, Ragon wanted to prohibit firearms used by criminals, including pistols.114 “I want to say that I am unequivocally opposed to pistols in any connection whatever. If you want something in the home for defense, there is the shotgun and the rifle, but a pistol is primarily for the purpose of killing somebody.”115 And he specifically dismissed Second Amendment objections to federal gun control. “I cannot see that violence to the Constitution which my friend from Texas sees in this bill.”116 If Arkansas could prohibit pistols, so could the United States.117 A prominent Democrat, Ragon endorsed Roosevelt in 1932 and helped push the New Deal through the Ways and Means Committee.118 In
return, Roosevelt made him a district judge.119 The NFA was part of Roosevelt’s New Deal program, enacted with broad support shortly after Ragon took the bench.120 But the Federal Firearms Act of 1938 was stirring up popular opposition, much of it based on the Second Amendment.121 The government needed to silence the complaints, and Miller was the perfect vehicle. Ragon
had presided in an O’Malley [the O’Malley gang, of which Miller was a part] prosecution, so he knew Miller was a crooked, pliable snitch, who wouldn’t cause any trouble. And Gutensohn was a comer who knew the game and got his due. Ragon’s memorandum opinion presented no facts and no argument.
With no defense muddying the waters, it was the government’s ideal test case.

[William Tell]

"If Arkansas could prohibit pistols, so could the United States."

Very interesting. Thanks.

Arkansas probably had a "right to keep and bear arms" in its state constitution with wording sufficiently similar to the Second Amendment to make such an argument.

Although disappointed that the Supreme Court has been so quiet regarding the Second Amendment recently, it was a pleasant surprise to get the McDonald decision just two years after Heller.