Once again, the true implications of what Supreme Court actually did with its groundbreaking decisions in Heller and McDonald is dawning on the anti-gun left. Since then, the Court sat back for years while some lower courts thumbed their noses at the basis for those decisions.
But now, with the slight rightward shift thanks to Trump’s two appointments, the Court seems (again seems) ready to use the New York State Rifle and Pistol Association case to build on that base. And observers like Amherst law professor Lawrence Douglas are tearing their hair out at the prospect.
That bears repeating: A ban on semiautomatic weapons would be unconstitutional. Using “text, history, and tradition” as his guides, Kavanaugh concluded that semiautomatic rifles “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”.
Why does the fact that we’ve permitted such weapons in the past mean that we are constitutionally tethered to them now? The logic again follows straight from the disastrous Heller ruling.
Perhaps worst of all, Heller dramatically and dangerously altered the rhetorical stakes in the battle over gun control. For decades, gun zealots ranted about an individual right to gun ownership. In Heller, the supreme court mainstreamed a radical outlier position into constitutional doctrine. Two centuries ago, the great English philosopher Jeremy Bentham warned of the danger of permitting a rhetoric of rights to hijack what really are and should be policy arguments. Is this not “putting into the hands of every fanatic arms that he can use against all governments?” Bentham asked.
Yet this is precisely what the court has done in Heller and McDonald. And all too literally.
– Lawrence Douglas in The supreme court’s pro-gun radicalism puts us all in the crosshairs