Gun Control Fails Rationality Test by Randy Barnett in today’s Washington Examiner:
In 2008, the Supreme Court held that the right to keep and bear arms was a fundamental right. In DC v. Heller, the court did not specify the exact type of heightened scrutiny it would employ when legislation restricts gun rights, except to insist that it would be higher than “rational basis review,” and that a complete ban on weapons “in common use” by the citizenry for self-defense and other lawful purposes — such as handguns — is unconstitutional under any type of heightened scrutiny.
So, when considering the constitutionality of bans on so-called military-style assault weapons, or restrictions on the capacity of magazines, senators should begin by asking whether the weapons being banned are in common use by civilians. When it comes to so-called assault weapons, like the AR-15, or 30-round magazines, the answer is clearly “yes.” Millions of such weapons and magazines are in private hands.
That should settle the matter, but senators can go a step further and ask whether these or other measures are actually rational — to articulate the end they are seeking to accomplish, then assesses whether the means adopted actually match up with the purported end. Would they actually have prevented a mass shooting or ameliorated real crimes?
This heightened “rationality review” could help ensure that the reason being articulated is the real reason for the law.
For example, “assault weapons” are a made-up category of weapons that is based solely on cosmetic features that make them look like the fully automatic weapons used by the military. Banning them leaves other rifles that are functionally identical in their lethality and rate of fire completely legal. Moreover, far more powerful hunting rifles are left untouched by the law, as are shotguns. This is simply irrational and therefore unconstitutional.
The same can be said for New York’s law limiting handguns to seven rounds, while allowing both active and retired police officers to keep their handguns that hold up to 15 rounds. If retired cops need 15 rounds to effectively protect themselves and others, then so do other citizens. Arbitrarily discriminating among Americans in this way is irrational and unconstitutional.
Do read the whole thing. I didn’t quote the entire article, and the entire article should be read by every anti-gunner, but I guess will only be read by those who already agree with it. There really isn’t anything in the article with which anyone can disagree. Randy Barnett has correctly stated the current state of Constitutional law as announced by the U.S. Supreme Court. He’s backed up not only by DC v. Heller but also by McDonald v. Chicago and a host of lower court cases. So disagreement is not the option available. Consternation is, but that’s all. Deal with it, liberals.
The current state of Constitutional law is worse for liberals than they know. Before the Heller and McDonald decisions, and a big part of the reason those cases went the way they did, is that for 25 years previously nearly all legal scholarship pointed in the direction those cases took.
Here’s a quote I like and don’t remember where I found it: “You can show someone the truth. You can’t understand it for him.”