HAS OUR JUDICIARY FAiLED US?

On May 11, 2022, a panel of the Ninth Circuit Court of Appeals (Jones v Bona) struck down a California statute that barred the purchase of semiautomatic rifles by any person younger than 21 years of age. Prior to that, the California age limit for the purchase of firearms was 18 years for a rifle and 21 years for a handgun. (By the way, the legal drinking age in California was and is 21) .

The court’s rationale for striking down the statute was the preposterous notion that the 21 yr-old age lrequirement was an infringement of the teenager’s Second Amendment rights!  (I guess the 21 age limit on handguns will soon fall by the same “logic.’’)

The ruling made no sense because 

• California has a minimum drinking age of 21, and buying a military-style assault rifle is a lot more dangerous than having a beer, 

• The “home safety” rationale used by Scalia in the revolutionary 5-4 Heller decision involved a handgun. The reasoning certainly does not apply to a military-style assault rifle that can fire 60 bullets a minute.

• The Heller decision was also based on the so-called  "originalist" approach to Constitutional interpretation. The Second  Amendment, the argument goes, applies to weapons that were “in common use at the time the Constitution was ratified,’ and therefore handguns were protected by the Amendment.

So the question is, were today’s semi-automatic rifles in “common use” in 1787. The answer is obviously “NO:.

At the time of our Revolutionary war, the individual weapon “in common use at the time" was a musket. The musket was a smooth bore rifle (that means it was highly inaccurate). It was muzzle-loaded — the shooter put a paper package of gunpowder down the muzzle, followed by a piece of paper wadding, followed by a chunk of lead, all of which he then tamped down with a steel rod that was carried along with the rifle. He then put a touch of gunpowder into the breach, closed the pan, and pulled the trigger which created a spark as the flint on the hammer hit the iron chamber containing the powder, and the resulting explosion expelled the bullet out the front end of the rifle.

This was a one-shot experience and a super expert might be able to get off four or five shots in a minute or so. Whether he could hit anything is a different question. The prevailing theory was that if there were enough lead flying around somebody downrange would likely get hit by something.

The 2022 Jones decision by the Ninth Circuit panel was by a vote of two to one, and both of the majority judges had been appointed by Donald Trump. The dissent was written by a New York District Judge sitting in the Ninth Circuit by designation.

The decision was logically and legally preposterous and the majority’s stated grounds made no sense whatever. They were pure NRA/Trump/right-wing Republican drivel.

After the May 11 Jones decision striking down the California statute raising the age limit for purchasing semiautomatic rifles to 21 years of age, the following events occurred:

On May 21 an 18-year-old using a legally acquired semiautomatic assault rifle killed 10 people at a Buffalo supermarket.

On May 24, an 18-year-old using a legally acquired semiautomatic assault rifle killed 19 second third and fourth graders in Texas and two teachers. He was armed with 12 clips, each containing 30 bullets. 

Two days later at an NRA convention in Houston Texas the speakers, including the former president of the United States Donald Trump, and the current governor of the state of Texas, Greg Abbott, vociferously denied there was anything wrong with the current state of gun laws and the problem was that the country abounded with "evil."

Their solutions to the problem were macabre under the circumstances:

More police at the schools?  The Texas massacre happened while dozens of police were gathered in the corridoroutside the classroom that contained dead and dying children. The cops waited more than an hour for the janitor to come with a key and unlock the classroom door. Even then, the 18-year-old shooter was killed by a Customs and Border Patrol sniper, suggesting that the brave Texas police never charged into the room where the killer, in the company of dead, dying, and blood-covered children, spent the next hour.

Improve mental health facilities? The Texas killer had no encounters, ever, with mental health authorities and there was no way one could discover that he had planned the massacre. The Buffalo killer did have an earlier encounter with mental health authorities. He had earlier posted that he desired to kill people. He was referred to a mental health evaluation where an emergency room technician asked him about that. He simply responded that it was a joke, he was kidding, and they let him go.

Nobody, nobody has ever supplied a rational basis for civilians owning a military-style assault rifle. Hunters acknowledge that the bullet from an AR15 is too small to bring down a deer. The rifle is not used for hunting. Its only purpose is to shoot at paper targets and give males, most of them young, the thrill of seeing how many bullets they can fire in one minute. (The Bushmaster company advertises 45, though somebody with a fast trigger finger can reach 60.)

At least a dozen and a half states joined CA in its unsuccessful litigation to keep its “age 21” statute.

Will the 100% political Jones case go to the Supremes? Of course it will. Will they reverse? This court?

I have earlier reported that legal training has led me to seek solutions by asking hypothetical questions.  Sometimes the Socratic method works, sometimes not so much.  Here’s today’s effort;

Assume a minority of the population sides with the gun lobby that continues. to sell more and more military-style weapons to our teenagers. 

And assume our Supreme Court, that seems to care more for zygotes than for second graders, affirms the Jones decision and. continues to side with the NRA,

And assume some two-dozen states nevertheless continue to arrest those who sell semi-automatic weapons to teenagers and to arrest the teenagers who buy them?  And assume  the Supreme Court tells those states that they can’t do that, and those states respond,, a la President Andrew Jackson, “You made your decision, now try to enforce it?”

What happens then?

A bientot.

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