The Courts Have Turned Away from Their Constitutional Purpose

If you think that we have a wonderful criminal justice system, you’re kidding yourself. We no longer have an independent judiciary whose power is limited “to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” The key words here are “under the Constitution.” The Constitution dictates which laws can be passed, so that section isn’t as important. However, the Constitution doesn’t seem to be a care of a U.S. appeals court that just upheld a New Jersey law that limits the number of rounds a magazine can hold.

To summarize the opinion of the court: if bad people do bad things, you’re rights can be legislated away. Let’s break down what the judges said. There are many issues here that confirm our courts have lost their way and in many cases should be ignored. The 2-1 divided court came to several conclusions: the law does not burden the 2A’s right to self-defense “in the home”; it does not violate the 5A’s takings clause because there are hoops owners can jump through to keep their magazines; and it is not a violation of the 14A’s equal protection clause that the law recognizes that law enforcement officers are just better people than the rest of us and should therefore have more rights. Let’s break these down individually.

“New Jersey’s law reasonably fits the State’s interest in public safety and does not unconstitutionally burden the Second Amendment’s right to self-defense in the home.”

First of all, the court relied on unspecified “statistics” that point to a “160% increase in mass shootings over the prior decade.” This is a bogus way to determine the constitutionality of an unconstitutional law. The court never identified its source, nor did it define exactly what constitutes a “mass shooting.” The reason for this is because there is no accepted, legal definition of a mass shooting. As such, the meaning and definition has changed depending on the source. For example, the idiots at the Gun Violence Archive, a leftist, anti-gun website founded by a rich, leftist, anti-gun lawyer.

See, the problem is that the GVA defines a “mass shooting” so broadly that just about every shooting with multiple victims is categorized as one. This includes gang and drug violence or even shootouts between rivals. However, in 2013, a federal law identified a “mass shooting” as “3 or more killings in a single incident.” Even this definition is problematic because it makes the assumption that a gang shootout at midnight over a turf war or a drug deal gone bad is the same as a deranged sociopath who enters an office and slaughters a bunch of people. Anyone that isn’t reliant upon pushing an agenda can easily see these aren’t connected. The only thing that is consistent is the type of weapon used.

Even uber-leftist website Mother Jones disputes the numbers frequently quoted from the GVA. While the GVA claims that there are more mass shootings than there are days in a year, MJ has that number at around a dozen per year. The only 160% increase in mass shootings has been a 160% increase in redefining the definition. This is hardly a way to determine – as the courts should be doing – whether something is constitutional. The courts findings are nothing more than regurgitated, anti-gun talking points using flawed and discredited sources.

The court is also attempting to convey the idea that the 2A only protects your right to keep and bear arms “in the home.” By including those three words, the court is pushing the narrative that there is no right outside the home to keep and bear arms. Nowhere in the 2A do the words “in the home” appear. It says a right to keep and bear arms and the fact that the founders didn’t just keep firearms in the home for home defense is proof that this was never their intent. The law certainly does burden the 2A right – in the home or otherwise – because it limits me as to the extent of my self-defense. Assuming I am a “one shot, one killer” gun owner, the law limits me to defending against a group of ten thugs. What if I’m attacked by 11? What if I miss once or more often, which is natural under duress, especially to those that aren’t as well trained as I am?

Here’s what the court is saying here: you only have a right to self-defense in your own home up to a certain arbitrary amount. Beyond that amount, the court essentially went mute. Either I have a right to self-defense or I don’t. What difference does it make if I choose to defend myself with a 10-round magazine or a 100-round magazine if I’m defending myself? This is another hypocritical factor the court missed. They use criminal activity to determine the limits of lawful self-defense. I understand laws to prohibit or prosecute criminal activity, but that should never have a bearing on lawful self-defense. This is no difference than a state limiting me to the type of car I can drive because a particular model is used more in bank robberies. I’m not a bank robber, so my choice of car shouldn’t be limited despite the fact that I COULD use it to rob a bank if I were predisposed to do so. Likewise, since I’m not a mass shooter, I shouldn’t be limited to what I can “lawfully” possess as a gun owner.

From Politico:

Since the mid-2000s, the incidence of mass public shootings on a per capita basis has been a bit higher than it was in the preceding 10 years. But the rates over the past 10 years are no higher than in the late 1980s and early ’90s, when the frequency of mass public shootings led to the creation of policies designed to address violence in schools and workplaces. Most notably, the growing number of high-profile mass public shootings in that era helped bring about the 1994 enactment of the federal assault weapons ban, which was allowed to expire in 2004.

They also wisely note that when the court relies upon statistics that rely upon rates, the conclusions can be misleading. A single murder in a state like Alaska with 739,795 people will produce a profoundly larger rate than a single murder in a state like California with 39.54 million people. The raw numbers are not much different today when it comes to gun violence than they were in the late sixties, but today there are over 326 million Americans versus just 202.7 million in 1969. The rates haven’t changed much at all.

The court determined that the 2A is protected because it only “places a minimal burden on lawful gun owners.” In other words, “it’s okay to violate the constitution as long as it’s just a little.” So, state could easily ban some religions, as long as there are other options for people to attend to church…somewhere. A press can be free, as long as it reports what the state determines is okay. It’s okay to quarter a minimal number of troops in our homes and not offend the 3A. You have a right to due process…as long as you are only accused of certain crimes or you’re at least 5’6″ tall. I know it sounds crazy, but logically this is the path it leads to.

“The law also does not violate the Fifth Amendment’s Takings Clause because it does not require gun owners to surrender their magazines but instead allows them to retain modified magazines or register firearms that have magazines that cannot be modified.”

There are several ways the law provides for owners of magazines with a capacity to hold more than ten round to become “compliant” with the law. Owners can either modify their magazines to accept ten rounds or less, destroy firearms or magazines that can’t be modified, register the firearms or magazines that cannot be modified, or transfer them to an “individual or entity entitled to own or possess it,” likely in a state that actually values freedom. They can also surrender the items to law enforcement as a last resort.

The 5A says that government shall not allow “private property [to] be taken for public use, without just compensation,” but the law in question in this case does not provide for a single penny to owners who are being required to modify, destroy, or surrender their property. In fact, the court completely ignored the “just compensation” clause. Additionally, the 5A only allows for such takings “for public use,” another clause the court ignored. Simply forcing once law-abiding citizens to turn in their private property because a bunch of politicians put words together on a piece of paper demanding it does not mesh with the constitution.

The court relied on testimony from researcher Gary Kleck and Everytown for Gun Safety (EGS), but only quoted EGS refutation of Kleck’s self-defense gun use (SDGU) figures in which he found that most SDGU involved fewer than ten rounds. It completely ignored that they also found there were many SDGU involving more than ten rounds. Despite this fact, the court simply found that those that needed more than ten rounds for self-defense were somehow less worthy of protection than those only needing fewer than ten rounds. By its own admission, the court “concluded that the testimony of certain experts (the ones, of course, that were on the side of the 2A) was “of little help in its analysis….[because] their testimony failed to clearly convey the effect this law will have on reducing mass shootings in New Jersey or the extent to which the law will impede gun owners from defending themselves.”

The court found that “while a ban on LCMs (large capacity magazines) does not restrict the amount of ammunition or number of magazines an individual may purchase…without access to LCMs, a shooter must reload more frequently.” This line of thinking is ludicrous and immoral. If most shootings, as the court found through its testimony, involve just 2-3 bullets, why limit it to just ten? If they can limit to ten, why not one? Why not 0? If the goal is not to determine constitutionality, but to determine what will kill fewer people or what will take shooters longer to kill the same number of people, then the court’s logic would justify a total ban on guns. It would also justify banning every single semi-automatic weapon. It could justify banning people in the future from owning multiple magazines or possessing more than a pre-determined amount of ammunition. It would justify even owning more than one gun!

“Finally, because retired law enforcement officers have training and experience that makes them different from ordinary citizens, the law’s exemption that permits them to possess magazines that can hold more than ten rounds does not violate the Fourteenth Amendment’s Equal Protection Clause.”

In a footnote on page 13 of the ruling, the court stated that “law enforcement officers use certain firearms not regularly used by members of the military and use them in a civilian, non-combat environment.” In the footnote to this statement, the court wrote, “because their duties require access to LCMs, active military members and active law enforcement officers are exempt from the ban.”

If magazines carrying more than ten rounds isn’t necessary for self-defense, as the court and the state allege, then it’s statement that “New Jersey law enforcement officers regularly carry LCMs…and along with their retired counterparts, are trained and certified in the use of firearms.” Well, if they are banned, why do they need them? Surely, it isn’t for self-defense because these types of magazines “are not necessary or appropriate for self-defense” by the courts own admission. Ostensibly, the police have guns for self-defense and defense of others, right?

Once again, the court here contradicts itself. In United States v. Miller, 307 U.S. 174 (1939), specifically noted that the constitution protect “arms supplied by [the people] and of the kind in common use at the time.” The most common firearms in use at this time are those that hold and/or are capable of firing more than ten rounds. Since it is the responsibility (and right) of the people to be armed and the courts have already determined that those arms are to be supplied by the people and “of the kind in common use,” the New Jersey law should have been found unconstitutional by an impartial court. The court had to have read this case because they referenced it when citing that “[t]he possession of arms also implied the possession of ammunition” in determining that “magazines are arms” since they hold the ammunition. That was the extent of the dynamic duo’s (the NJ decision was a 2-1 split decision) use of this key case law.

But, the law doesn’t just exempt active law enforcement. It also exempted retired law enforcement officers. Why? Because of their “‘extensive and stringent training’ and experience ‘confronting unique circumstances that come with being a police officer,'” which are “different from, and hence not similarly situated to, other residents.” Really? Correct me if I’m wrong, but don’t cops investigate crimes that have already occurred? Before a cop puts himself in danger of confronting a violent murderer, hasn’t the common citizen already been confronted by this same individual? Before a cop confronts a domestic abuser, hasn’t that person already abused someone violently? The only difference between the public and the police is that the police are paid to confront the people who already confronted the public. Therefore, we should be afforded the same means of self-defense as the police.

As for the “extensive and stringent training” argument, what about those civilians who never served in law enforcement who are more extensively and stringently trained than them? If the benchmark is having “extensive and stringent training,” why wouldn’t that apply to society as a whole instead of just certain government agents. I’ve met many people who have exponentially more and better training than what law enforcement receives. Even within law enforcement, having a badge doesn’t mean your are “extensively and stringently trained.” Some officers serve admin roles while others are on SWAT teams. Under this logic, doesn’t that mean that SWAT officers should have more rights than admin or traffic cops? And who decides what constitutes “extensive and stringent training?”

The fact that the court concluded this isn’t a violation of the equal protection clause is laughable.

The courts claims to have “carefully consider[ed] all of the evidence and the parties’ arguments,” but admits that it dismissed research it simply didn’t want to agree with. If this ruling isn’t overturned, this is the precedent it is setting.

One Comment on “The Courts Have Turned Away from Their Constitutional Purpose

  1. Love reading your stuff, and I agree with this write up whole heartedly.

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