Ex-'regulatory czar' uses slick sleight of hand to justify banning modern guns

Cass Sunstein wants the government to have the option of banning modern firearms

Credits:

The Obama administration's former 'regulatory czar,' Cass Sunstein, is a man with some . . .interesting ideas (at least to those who find raving lunacy "interesting"). He has advocated banning hunting, and argued even forproviding a mechanism for animals to file lawsuits against humans. He has written a book about the "problem" of free speech, and cited the gun rights debate as an example of why he thinks there should be an Internet equivalent of the "fairness doctrine," so he and his fellow forcible citizen disarmament advocates can better compete against gun rights advocates online.

Perhaps as a gift to those of us who enjoy irony, he recently wrote a column forBloomberg, titled "Gun Debate Must Avoid Crazy 2nd Amendment Claims." In it, he wastes little time before making, well . . . crazySecond Amendment claims. For example:

The rise of the Second Amendment as a serious obstacle to U.S. gun control legislation is astonishingly recent.
Its rise is a tribute less to the vision of the Founding Fathers than to the skill, money and power of the contemporary gun-rights movement, which has not only exerted disproportionate influence on Congress, but also helped transform the landscape of constitutional argument.

The gist of his argument is that the very notion that the Second Amendment could protect the people from forcible citizen disarmament laws materialized out of thin air within the last few decades. He is not the first to make that claim, as we have discussed before. Those making that argument tend not to address this William Rawle quote in a book published in 1829:

No clause in the Constitution could by any rule of construction be conceived to give the Congress a power to disarm the people. Such a flagitious attempt could only be made under a general pretence by a state legislature. But if in any pursuit of an inordinate power either should attempt it, this amendment may be appealed to as a restraint on both.

Another example (of many) of problems with Sunstein's claim would be Tench Coxe extolling the Constitution's protection of an armed citizenry, centuries prior to Sunstein's lamenting the "astonishingly recent" "rise of the Second Amendment as a serious obstacle to U.S. gun control legislation."

Another "crazy claim" of Sunstein's is more subtle, and thus more insidious. In reference to the Supreme Court's District of Columbia v. Heller decision:

To this the court added that the sorts of weapons it was protecting were those “in common use at the time” that the Second Amendment was ratified.

Get that? He claims that the Heller decision recognizes Constitutional protection only for those arms "'in common use at the time' that the Second Amendment was ratified." That would mean that any firearm more advanced than flintlock pistols and muskets can be banned. It is also very clearly a badly flawed reading of Heller, which itself drew on the United States v. Miller decision (a decision reached, remember, without the benefit of any oral arguments--or even a written brief--for the defense) for the "common use" test. From Heller:

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” . . . 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.

From this, one can only conclude that to the Robert's Court, "in common use at the time" means "at the time the question of Constitutional protection for private possession of a given arm is being considered."*

This is not an academic question. With the suddenly revived push to ban so-called "assault weapons," court challenges to such bans (whether at the federal level, if the murdered-child-exploiting gun ban frenzy gets that far, or at the state level) are looking more and more likely, and thus the meaning of "in common use at the time" becomes more and more important.

If "the time" in question is the present, the gun prohibitionists will be hard pressed to argue that so-called "assault weapons" are not in "common use." A recent article in Slate estimated the national population of AR-15s--just one type of "assault weapon"--to be in the neighborhood of 3,750,000. ANew York Post article would seem to indicate that Slate's estimate is quite conservative--estimating that in New York state alone (hardly a hotbed of civilian acquisition of concentrated firepower), there are "at least 1 million" so-called "assault weapons."

The "common use" test for Constitutional protection of various arms is far from ideal. A brand new weapons concept, for example, cannot be "in common use" the instant it is developed, and could thus presumably be banned as "dangerous (the purpose of weapons is to be 'dangerous,' after all) and unusual." Still, the Heller decision--with all its limitations--is what we have.

In the meantime, "assault weapons" are very clearly in "common use," with that use growing more common every day, at a pace limited only by the production capacity of the manufacturers.

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Saturday, December 29, 2012