June 8, 2022

(Note: I am not a lawyer. This article is not intended to provide legal advice about the types of guns discussed or the laws that apply to them.)

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The case brought by the New York State Rifle and Pistol Association before the Supreme Court presents the following, limited issue: “Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.” That’s a pretty tight question. Basically, it asks if New York has the right to deny a concealed carry permit to an otherwise law-abiding citizen. We already know (District of Columbia v. Heller) that carrying a weapon is a right, not a privilege. That would seem to make this an open-and-shut case. Yet, the Court has taken six full months to rule on a case that, on its face, is a complete no-brainer. What’s taking all the time?

We already know that, as the Supreme Court said in Heller, the militia is every able-bodied male able to bear arms, and the term “well regulated” simply means “properly disciplined and trained.” Further, the statute exists to guarantee the security of a free people, not the government. So, what’s up? Is Justice Thomas finally going to wrestle the Second Amendment from its perpetually disfavored status?

The Second Amendment protects a very specific right. That right is a freedom of action that belongs to the individual. It is “unalienable” according to the Declaration of Independence. That means that you can’t take it away from me. You can’t give it to me, either. It’s mine. Period. But New York likes to say that you don’t have a good reason in their eyes, so you can’t exercise your rights. That’s plain wrong so the case should be a slam dunk decision for the plaintiff. But nothing has been announced. Why?

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The simplest answer is that SCOTUS takes its time to get every ‘I’ dotted and ‘T’ crossed. But I wonder if there isn’t something else going on. And that is something called “the Court’s own motion.” This is a mechanism holding that “a court can act on a contravention or suspected contravention of the overarching obligations on its own motion.” That is, if the Court can act if it sees a larger obligation to settle a set of larger questions, perhaps to make certain that all lower courts apply the law properly.

In the case of Heller, we’ve seen District Courts do backflips to avoid letting law-abiding citizens exercise their rights. Several of these cases reached SCOTUS, only to be batted away, leading to Justice Thomas’ disgust with the rest of the Justices who treat the Second Amendment as a disfavored right. But the issue won’t go away. As lower courts insist on misreading Heller and the Second Amendment, it may be that SCOTUS has made its own motion. We won’t know until the decision is published but allow me to speculate a bit. And at the same time, let me throw in some not-so-well-known facts.

Federal gun regulation began in 1934 with the passage of the National Firearms Act (“NFA”). Prohibition arrived in 1920, creating massive profits for gangsters like Al Capone. One of his pet toys was the Chicago Typewriter, A.K.A. the Thompson Submachine Gun or Tommy Gun. It fired a .45 caliber bullet in a fully automatic manner. Pull the trigger once and every cartridge in the gun would be expelled. That bullet was four times the mass of the AR-15 varmint round. Coupled with a 100-round drum magazine, it certainly made bystanders dive for cover.

The Tommy Gun wasn’t particularly accurate. As GI’s learned in World War II, it was good for clearing rooms in house-to-house combat but not much else. It was expensive to acquire and use, but its association with bootleggers made it a symbol of organized crime.

So, when Congress decided to “do something” about organized crime, the Tommy Gun was an easy target. It could be concealed under a trench coat making it seem more sinister. Ultimately, the NFA banned (by taxation) rifles with barrels under 16 inches and shotguns under 18 inches. One must ask how this made the world safer. In short, it didn’t because machine guns were rarely used in crime and short-barreled rifles aren’t either.

With the advent of specialized stabilizing braces, the AR-15 platform was adapted to allow severely injured persons to fire these weapons well. Regulations defined what an “AR Pistol” was, and many thousands or even millions have been manufactured. Here’s an example.

Image: AR Pistol with a brace. YouTube screen grab.