Federal judge: The Second Amendment doesn't protect AR-15s

He’s from Massachusetts. He’s, er, also a Reagan appointee.

The ruling doesn’t matter, though, in this sense. Someday there’ll be another liberal majority on the Supreme Court and that majority will surely declare “assault weapons” outside the bounds of the Second Amendment, whatever happens legally between now and then. You could have a mountain of lower-court rulings holding that the right to bear arms includes assault weapons, you could have umpteen Supreme Court precedents affirming that fact. The next liberal Court will flip over the table because gun rights is one of the litmus-test issues for which the justices will have been selected and appointed. It’ll be a replay of the conservative movement to appoint anti-abortion justices in the name of overturning Roe, but unlike the right’s picks, the left’s won’t choke when they get the opportunity. In fact, never mind assault weapons: The entire line of cases beginning with Heller’s assertion of an individual right to bear arms is going out the window as soon as liberals on the Court have the numbers.

Usually it’s the Supreme Court that acts as a last line of defense against Congress for the right wing. (That’s how it was supposed to work with ObamaCare, anyway. Thanks, John Roberts!) In this case it’ll be Congress that’s the last line of defense against the Court. An assault weapons ban will be constitutional — if Democrats can find the votes in Congress to pass one. No easy trick. In the meantime, though, blue-state bans are constitutional, at least according to blue-state federal courts:

“AR-15s and [large capacity magazines] are most useful in military service, they are beyond the scope of the Second Amendment […] and may be banned,” wrote Massachusetts District Court Judge William Young. The case was first brought in January 2017 by several gun owners, the nonprofit group Gun Owners’ Action League, and gun stores On Target Training and Overwatch Outpost…

Young called Scalia’s majority writing a “tour de force” on the Second Amendment. Critically, Young wrote that Scalia “explained that ‘weapons that are most useful in military service—M-16 rifles and the like’ are not protected under the Second Amendment.”

“The AR-15 and the M16 were designed and manufactured simultaneously for the military and share very similar features and functions,” Young wrote. “Therefore, because the undisputed facts convincingly demonstrate that AR-15s and [large capacity magazines] are most useful in military service, they are beyond the scope of the Second Amendment.”

I don’t understand how Young or other judges have derived the idea from Heller that if a weapon is “most useful in military service” then it’s necessarily outside the protection of the Second Amendment. Read Heller for yourself. The key sections in Scalia’s majority opinion are II.E and III. The Court’s point in that case was that just because a weapon is “military” in nature doesn’t mean that it automatically *is* protected under the Second Amendment. One might reason that a citizen “militia” intent on defending itself from the government under the Second Amendment needs weapons commensurate with what the U.S. military has in order to stand a fighting chance, but it doesn’t work that way, Scalia wrote. Just because the Marines have machine guns, tanks, and bombs doesn’t mean you get them too. “Dangerous and unusual weapons” aren’t protected.

So what is protected? Quote:

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.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. 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…

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

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.

A weapon in common usage for a lawful purpose like self-defense is protected on the theory that that’s the sort of weapon an American would have owned already and brought to militia duty at the time the Second Amendment was ratified. “Dangerous and unusual” weapons don’t fit the bill because, by definition, they’re not in common usage and their lethality calls into question whether the purpose for which they’re owned really is lawful. Whether a particular weapon is “most useful in military service” is, or should be, a secondary concern designed to help you analyze the common usage/lawful purpose test. A short-barreled shotgun isn’t particularly useful in military service but it was still bannable per the Court’s 1939 ruling in United States v. Miller because it’s a weapon a criminal is likely to use for easy concealment, i.e. not typically owned for a lawful purpose. Handguns, meanwhile, are not bannable despite the fact that they’re exceptionally useful in military service because they’re common and obviously useful in defending yourself. The “military weapon” framework only gets you so far.

Young, however, relies heavily on it in his opinion and finds that because the AR-15 is too similar to an M-16, more useful for combat than for hunting, that it’s unprotected. It’s certainly a dangerous weapon — but in Heller, the Court didn’t say that dangerous weapons can be banned. They said that “dangerous and unusual” weapons could. The AR-15 is the opposite of unusual. It’s one of the most popular firearms in America. Young addressed that point too, or tried to, by throwing Scalia’s words back in his face:

In other words, Young’s throwing the part in the Heller opinion about “dangerous and unusual” weapons out the window. All that matters is whether a weapon is “most useful in military service.” The passage from Scalia’s other work is cited to assert that it’s irrelevant whether American attitudes have evolved to make a “military” weapon common among civilians now. The question is what attitudes were like at the time of the Second Amendment’s ratification. I.e. no “military” weapons! Except, again, that’s not what Heller says. Whether a weapon is “most useful in military service” isn’t the test, or isn’t supposed to be. All Scalia is doing in that paragraph from Heller, as I read it, is clarifying that you’re not entitled to everything the military has just because the Second Amendment says you’re part of a “militia.” You get to have whatever’s in common usage for lawful purposes like hunting or self-defense. A more conservative judge could easily find the AR-15 fits that bill. Don’t let us down, Gorsuch!