This week I cover the stories I broke about Republicans’ efforts to stop President Joe Biden’s gun agenda and ATF nominee. Then I talk with one of the top gun law researchers in the academic world.
Jake Charles, executive director of the Center for Firearms Law at Duke University, joins me to discuss the strengths and weaknesses of the recent California “assault weapons” ban ruling. While he agrees the opinion was written in a way that makes it accessible to ordinary people, he argues it doesn’t do much to convince anyone who isn’t already on the gun-rights side of the fence.
We go back and forth on the metaphors used by Judge Roger Benitez as well as the backlash to them. And we talk about how influential his ruling might end up being in the long run. Plus, we dive into the different legal standards Benitez employs in his ruling, especially his “Heller test.”
Jake brings his years of experience studying Second Amendment litigation and historical gun laws to the conversation, which helps him provide a level of insight you just can’t find elsewhere. That’s why I often quote him in my stories and why I wanted to have him on when I saw his take on the California ruling was different from much of what I’d seen in the gun community.
I think the conversation was fruitful and something you simply won’t find anywhere else. When I say I want to bring on people who are both knowledgeable and have a different point of view, Jake is exactly the kind of person I’m talking about.
You can listen to the full episode here or on your favorite podcasting app.
Or you can watch it below:
2 Responses
If I heard correctly you repeated the frequent misquote of Scalia in the Heller decision, that it was OK to ban M-16s. The entire paragraph reads:
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. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
In other words, if you make the argument that the “M-16 rifles and the like” can be banned then you have de facto separated the clauses and the Second Amendment plainly is the right of the people. Scalia then, in essence, says that a militia today would need to have modern sophisticated arms to be effective. In conjunction with his use of the phrase “useful in military service” from Miller, it could (or should) be interpreted that these classes of arms are also protected by the Second Amendment just as the last sentence could (or should) be interpreted as an acknowledgement that it is impractical for civilians to own planes, ships and tanks that cost tens of millions or billions of dollars.
I would expect that “militias in the 18th century” were better equipped than the continental army. The cannons were equivalent. The muskets were likely just as good if not better than what was issued. But a fair number of the militia had rifles and I doubt that many, if any, were purchased by a stingy congress and issued to the troops. I don’t argue for the right to chemical, biological or nuclear weapons. But if I had the wealth of Jeff Bezos and wanted my own aircraft carrier with a squadron of F18s, then charge me 200 bucks for every taxable weapon and let me lay the keel.
Yea, I’ve always taken that passage to be Scalia’s way of saying that Heller doesn’t cast doubt on the National Firearms Act or the Hughes Amendment. It doesn’t mean that a future ruling couldn’t overturn them but the Heller opinion was focused on getting 5 votes to set the bare minimum limit for what the Second Amendment could mean. It wasn’t meant to explore the outer boundaries of the right.