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Thanks to Scalia, supposed 2nd Amendment-friendly SCOTUS strikes blow to gun rights

Modern AR-15 (M4A1) carbine

by Jay Baker

Last week  the United States Supreme Court refused to hear two appeals of lower court rulings that restrict gun ownership: one in Maryland and one in Florida. In doing so it proved that far from being a “2nd Amendment friendly court” with justices gun owners could love — as Donald Trump campaigned on and has so often said – it remains a statist court that is hostile to individual liberty and believes “rights” guaranteed under the constitution are nothing more than privileges granted by the courts.

Or perhaps we could say that Trump fulfilled his promise of nominating a justice – Neil Gorsuch — who is in the mold of Antonin Scalia. And that is not a good thing.

The rulings SCOTUS declined to hear involved Maryland’s ban on so-called “assault weapons,” and Florida’s law prohibiting open carry of firearms. The justices, without comment, left Maryland’s ban in place and, in a separate case, refused to consider Florida’s open carry ban.

When SCOTUS overturned Washington, D.C.’s handgun ban and requirement that lawfully-owned rifles and shotguns be kept “unloaded, disassembled or bound by a trigger lock” in District of Columbia v. Heller in 2008, short-sighted conservatives hailed the decision as a win for the 2nd Amendment and praised Scalia – who wrote the majority opinion – as a constitutional originalist and defender of rights. It was, at best, a hollow victory.

It is, in fact, Scalia’s opinion upon which the Maryland ban was upheld by a federal appeals court. That’s because Scalia wrote that, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home… (Emphasis added).

Scalia went on to write that previous court rulings effectively limit “the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.” He then continued “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…. Miller’s holding that the sorts of weapons protected are those `in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” (Emphasis added.)

Of course, what constitutes “dangerous and unusual weapons” is in the eyes of the beholder. And it was those points upon which the federal appeals court based its ruling that weapons like the AR-15 are not protected by the 2nd Amendment. The appeals court pointed to the Supreme Court’s Heller decision, which included a line suggesting that states and cities could ban the M-16 rifle, a military version of the AR-15.

“We have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage,” Judge Robert King wrote for the majority. The appeals court voted 10-4 to uphold the ban.

Maryland enacted its assault weapon ban after the 2012 shooting that left 20 children and six adults dead at an elementary school in Newtown, Conn. The measure also bans detachable magazines that have a capacity of more than 10 rounds.

The Florida case involved Dale Lee Norman, who was arrested in 2012 while walking on a sidewalk with a handgun in a holster. Florida permits the carrying of licensed handguns outside the home, but the state requires the weapons to be concealed.

In urging the court not to hear the appeal, state officials said Florida, South Carolina and Illinois are the only states that allow carrying concealed weapons but bar carrying guns openly.

Not long before he died, the brilliant libertarian columnist William Norman Grigg opined on the Fourth Circuit’s ruling upholding the ban. He wrote:

A right that is subject to government-imposed limitations is not a right in any sense. The innate right of armed self-defense exists whether any government chooses to recognize it. What made the Second Amendment unique was its recognition of the fact that in the constitutional scheme, the government does not have a monopoly on the legitimate use of force. Scalia, like many statist jurists before him, insisted that the permissible civilian uses of firearms are all defined within that government-exercised monopoly on force; they are thus temporary concessions that can be redefined by our rulers at whim. The Fourth Circuit’s ruling thus offered no surprises to anyone who had understood the clear implications of Scalia’s ruling.

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