Heller | The Zelman Partisans

I’ve only been up for a couple of hours (as I begin typing), and the news is already full of stupidity that I’ll need to address. I’ll lead off with a case challenging Washington, DC’s “large capacity” magazine ban, Hanson v. DC. The judge, one Rudolph Contreras, denied a preliminary injunction against the ban. His… reasoning is… remarkable. Or something; I’m trying to be somewhat polite.

A weapon may have some useful purposes in both civilian and military contexts, but if it is most useful in military service, it is not protected by the Second Amendment.
[…]
[Large capacity magazines] are not covered by the [2A] because they are most useful in military service.

Oddly, Contreras cites HELLER in making that point. I can’t find that argument in HELLER, which was largely about whether non- military weapons could be regulated, and how, but there is this.

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.

Rather the opposite of Contreras’ weasel-wording, eh? Indeed, HELLER even cites the earlier MILLER, which establishes that militarily-useful arms are protected by the Second Amendment.

In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

Having chucked decades of SCOTUS precedent already, Contreras proceeds to demonstrate an amazing lack of judicial awareness of current events and Supreme Court decisions. Now that he’s established in his own deluded mind that standard capacity magazines are not 2A-protected, he addresses whether this particular restriction of such magazines is permissable.

WARNING: If you’re drinking, swallow before proceeding, for the protection of your screen.

Under this “two-step approach,” a court must “ask first whether a particular provision impinges upon a right protected by the Second Amendment; if it does, then . . . go on to determine whether the provision passes muster under the appropriate level of constitutional scrutiny.

Umm… BRUEN, moron. (All right; “somewhat polite” is off the table after all.) Associate Justice Thomas spent a fair amount of ink taking lower courts to task for continuing to use the two-step approach.

The Court rejects that two-part approach as having one step too many. Step one is broad y consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support a second step that applies means-end scrutiny in the Second Amendment context. Heller’s methodology centered on constitutional text and history. It did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny.</b
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To justify its regulation, the government may not simply posit that the regulation promotes an important interest.
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The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.

HELLER rejected two-step government interest scrutiny.

MCDONALD rejected two-step government interest scrutiny.

BRUEN rejected two-step government interest scrutiny, and bitch-slapped lower courts for continuing to use it in direct defiance of the Supreme Court.

At this point, I wouldn’t blame Clarence Thomas if he is looking for a 2X4 and Contreras’ home address.

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The latest gun people control argument making the rounds is a “report” from the Violence Promotion I-mean-Policy Center that purports to show:

U.S. Gun Death Rate Jumps 17 Percent Since 2008 Supreme Court District of Columbia v. Heller Decision Affirming Right to Own a Handgun for Self-Defense

Oh, dear. Heller is killing people.

Not. Let’s take a look at the VPC’s own chart demonstrating that dramatic jump post-Heller.

Hmm. Modest increases through 2012; but nothing dramatic. Still well below the long-term average and part of a long term decline in firearms-related deaths. But look where we do see a dramatic jump: 2015 and 2016. That starts 7 years after Heller.

You’d think that if Heller were the cause, we’d see that big increase a little sooner. My uneducated, troglodytic gun owner guess would be that something changed in 2014 or 2015; maybe 2013 or 2016. But what?

2013:

New York passes “NY SAFE” act )assorted bans, registration, licensing, universal firearms PPYI, ammo PPYI, and more).
Colorado launches universal PPYI checks, “high capacity” magazines bans, mental health reporting requirements.
Maryland passes its “Firearm Safety Act,” called “one of the strictest gun laws in the nation.” (Sure helped Baltimore reach its goal of one of the highest homicide rates in the world, eh?)

2014:

California begins keeping more firearms sales records and bans “high capacity” magazine sales.
Connecticut begins “assault weapon” and “high capacity” magazine registration.
Obama launched his “Gun Violence Reduction Executive Actions;” 23 new executive orders intended to restrict honest folk.
Obama announces his intent to expand DACA protections for illegals.
Washington passes I-594 PPYI checks.

2015:

Oregon launches universal PPYI.
California somehow found something about guns not already regulated to their taste and added several more restrictions, including confiscations.
Alabama prohibited more people possessing firearms, and required more reporting.
Obama ordered the ATF to increase FFL licensing requirements, increase hiring, boost NICS reporting, and make many SS disability recipients prohibited persons.
Virginia’s AG reneged on reciprocal carry agreements.

2016:

California expands firearms seizures, blocks campus carry, imposes ERPOs

And much more.

Granted, none of that establishes causation, but at least the temporal correlation is a lot closer than a SCOTUS decision years back. And about that decision…

Heller was specifically about District of Columbia firearms restrictions. Not national laws. It was important at the national level because everyone expected it — correctly — to be used as a precedent in future. But to blame Heller itself for an increase in deaths indicates a simplistic… nay, simple-minded understanding of law and precedent.

It wasn’t until the SCOTUS McDonald decision two years later that Heller‘s precedent was applied to all the states. Funny that the VPC report doesn’t even mention that case.

Carl is an unpaid TZP volunteer. If you found this post useful, please consider dropping something in his tip jar.