Anti-Gun Academic Relies on Readers’ Ignorance in Attacking Kansas Machine Gun Ruling

Following a US District Court judge in Kansas ruling that machine guns are “bearable” and thus protected under the Second Amendment, Pepperdine law professor and prominent anti-gun academic Jake Charles has published a follow-up in The New Republic. The article is subtly titled, The Right’s Dystopian Vision for America: Machine Guns For All. In his attempt to discredit the ruling and the Supreme Court’s Bruen decision that anti-gun academia continues to rage against, Professor Charles plays on the ignorance of his layperson general audience and it requires a response.

To begin with though, I agree with him that the district court ruling is likely to be reversed by the appeals court. Even if it isn’t, this iteration of the Supreme Court isn’t likely to strike down the Hughes Amendment (let alone the NFA). When even Justice Alito is suggesting Congress can ban bump stocks, machine guns are not something we’re winning any time soon.

That said, the District Court ruling that Professor Charles criticizes was correct even if you think machine gun bans are constitutional. Why? Because as Charles omits in his entire article, the government didn’t even try to meet its historical burden. In fact, it barely presented any historical analogues at all.

The ruling noted . . .

To summarize, in this case, the government has not met its burden under Bruen and Rahimi to demonstrate through historical analogs that regulation of the weapons at issue in this case are consistent with the nation’s history of firearms regulation. Indeed, the government has barely tried to meet that burden….the court expresses no opinion as to whether the government could, in some other case, meet its burden to show a historically analogous restriction that would justify § 922(o).

So it seems that Charles is upset that the district court properly held the government to its burden under Bruen. Let’s go through some of the excerpts in Professor Charles’ article . . .

Although the court did not mention the application of its ruling to cases like the bearable Javelin anti-tank weapons, it’s hard to see where the judge could draw the line if the principle of his decision were taken to its logical conclusion.

No, it isn’t. There is a decent amount of history of civilians owning machine guns, even those subject to the NFA’s restrictions (and some were owned before the NFA existed). Hundreds of thousands remain in civilian hands. By contrast, there is no history of civilians owning “Javelin anti-tank weapons” that I am aware of, and if any do own such weapons, they’re rare outliers. Perhaps a Javelin would meet the outer limits of the definition of a “bearable arm,” but it wouldn’t come close to clearing the historical bar of not being a “dangerous and unusual” weapon.

The history and tradition framework announced in Bruen provides lower courts no guide. Judges are now free to read the historical record broadly or narrowly, draw strict or loose historical analogies, demand identical or just barely related historical precursors, and adopt high or low levels of generality when assessing the historical landscape of gun regulation—all within the confines of Bruen’s capaciously vacuous framework 

Charles’ real complaint here is that people like him know that under the historical test, most gun control laws — particularly bans on common rifles and magazines — are not acceptable. Bruen is only “vacuous” if a judge is determined to try to uphold any gun control, as the Ninth Circuit did with its unbeaten 50-0 record before Bruen.

Other topics, such as who may have firearms, allow for more restrictions, as they did in the past through the tradition of disarming those deemed to be dangerous.

Yes, Bruen is a tough test to meet when it comes to certain laws. It should be since it applies to a constitutional right that proclaims that it “shall not be infringed.” Complaints that the Bruen test is too hard seem to actually be complaints that the Second Amendment shouldn’t exist at all.

One federal court ruled that the Second Amendment forbids a state from outlawing guns on playgrounds or in banks and hospitals.

This is so lame. Charles is talking about the California Rifle & Pistol Association’s win in May v. Bonta, but he leaves out three critical pieces of information:

1. There is absolutely no history of government banning carry in playgrounds, banks, and hospitals. The California DOJ presented nothing even remotely similar, even though banks and hospitals both were plentiful, certainly by the 19th century. Only a few specific parks banned carry, not all parks in general. The state’s experts mainly opined on why, e.g., a hospital in the 19th century is different than one today. But none of those differences were material in terms of someone who was peaceably armed for self-defense. And, of course, if privately-owned places want to disallow carry, they can do that.

In fact, California didn’t even present a modern history of states banning carry in these places. Not one state banned carry in banks before Bruen, not even California.

2. There is no risk of danger, as California has an exhaustive and costly process of getting a concealed carry permit. Like everywhere else in the country, crime by permit holders is incredibly rare. We presented data from many states to prove that. The California DOJ conceded the point and didn’t even attempt to rebut it…because they couldn’t.

Unlike schools, which often have fences, sometimes a resource officer, and adult supervision, the only person at a playground who can defend your child is you. I’m not sure what the beef with that is, especially if you went through the trouble of getting a carry permit. Why shouldn’t I be allowed to be armed while supervising my child at the park, particularly in a city overrun with mentally ill homeless people?

3. Finally, Professor Charles focuses on the places likely to scare the “normies.” Playgrounds, banks, and hospitals, oh my! He leaves out that what California actually did with SB2 was attempt to ban carry everywhere, except streets and sidewalks, plus any private businesses unless they were willing to post a sign expressly allowing carrying guns. The state acknowledged this in their briefing and at oral argument, bragging that streets and sidewalks were the “quintessential public place,” as if that was enough of a right to carry. It was very misleading for Charles to leave that context out.

Had California only banned carry in banks or only in hospitals, I wouldn’t think that’s constitutional, but who knows if such a narrow addition to the state’s gun control laws would have resulted in an immediate lawsuit. Instead, the state went all-in after Bruen, trying to effectively erase carry rights.

I’m sure Charles will be much happier with the Ninth Circuit’s upcoming ruling. We got a tough panel on appeal. I hope they surprise us.

The focus should be on the principles in the past, the Court insisted, not on whether the challenged law mirrored isolated historical statutes. Morgan was having none of that either. In a decision that spans all of eight meager pages of substantive analysis, the court barely mentioned Rahimi at all. It certainly did not focus on “the principles” to which the historical record attests.

Again, the ruling was brief becaue the government presented almost no historical analogues at all. They only argued in very general terms that the carry of “dangerous and unusual” weapons can be restricted, but made no attempt to show that machine guns are in that category.

What does Charles expect the District Court to have done, just hand them a win simply because they said, “Machine guns bad?” Of course it was only eight pages of analysis. There wasn’t much there to discuss.

The Supreme Court’s history and tradition framework unjustifiably replaced the workable and conventional constitutional test that takes account of contemporary conditions, like the harms machine guns cause and how ill-suited they are to lawful self-defense.

Charles only thinks the old, pre-Bruen test is “workable” because nearly every gun control law was upheld under that standard…and in the Ninth Circuit it was literally all.

Under that old test, courts ruled the “and bear” part of the Second Amendment meant nothing at all and carry could be completely banned. Under that old test, Californians couldn’t buy modern handguns for a decade, as the Ninth Circuit upheld the state’s requirement for nonexistent microstamping technology. Under that old test, a conviction for a petty nonviolent crime three decades ago meant you could lose your rights forever.

Gun control advocates and their allies in the courts should pause for some self-reflection. Had the courts applied Heller more fairly, and it was a kind of “win some, lose some” situation for Second Amendment litigants, with us at least winning the obvious ones (e.g., striking down microstamping, confirming there is a right to carry), Bruen probably never would have happened. It’s their own arrogant attempt to completely erase our rights that forced the Supreme Court’s hand into an approach that tries to stay closer to historical standards.

Even today, anti-gun judges are shameless, suggesting things like old bowie knife carry bans are analogous to modern bans on common rifles, even though things like Winchester rifles were never banned in the 19th century. They still haven’t learned the lesson, and I hope SCOTUS smacks them again soon.

I don’t know who is going to ultimately prevail here. A lot will hinge on the November presidential election (and the next one). But I’m as confident as ever that we are the side of good faith arguments. Professor Charles may be the smartest of the pro gun-control legal scholars. He’s quite talented and likeminded judges understandably cite him frequently because of it. Yet even he left out so much critical context in his New Republic article that it ends up misleading readers who don’t know better.

I don’t try to mislead in my arguments, and I don’t think most on our side do. When your position is sound, you don’t have to.

(NB: If you’re interested, Professor Charles responded to my criticisms and I’ve answered him here.)

 

Konstadinos Moros is an Associate Attorney with Michel & Associates, a law firm in Long Beach that regularly represents the California Rifle & Pistol Association (CRPA) in its litigation efforts to restore the Second Amendment in California. You can find him on his Twitter handle @MorosKostas. To donate to CRPA or become a member, visit https://crpa.org/.

This post was adapted by SNW from a tweet posted by Konstadinos Moros.