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Why Judges Matter

Thursday, August 23, 2018

Why Judges Matter

Can a state attorney general unilaterally reinterpret a gun control statute to retroactively ban firearms that had been openly bought and sold within the state throughout the law’s 20-year history? William G. Young, a federal judge in Massachusetts, said “yes” in Workman v. Healy, the NRA-supported challenge to the attorney general’s ban. That opinion illustrates why President Donald Trump’s appointments to the federal judiciary are so important.

A wave of distinguished judicial nominees from Trump is already descending upon the federal bench. But far more are needed, and the U.S. Senate needs to quickly confirm them. It is no exaggeration to say that pro-Second Amendment judges are often the last line of defense for our Second Amendment rights.

This progress must continue. Because the alternative is what we are seeing in case after case from jurists whose views of the Second Amendment are rooted in the mid-to late 20th century, before the U.S. Supreme Court’s 2008 decision in District of Columbia v. Heller.

Few judges at that time took the Second Amendment seriously. Yet their boldness in trying to write the individual right to bear arms out of existence is perhaps exceeded by the boldness of judges like Young, who—though bound by Heller—defiantly refuse to enforce it.

Not only does Young’s opinion in the Workman case uphold an expansive ban on semi-automatic firearms and magazines by misreading Heller, it goes out of its way to mock the legacy and jurisprudence of that decision’s author, the late Antonin Scalia.

Massachusetts enacted a state law banning a variety of semi-automatic firearms and magazines in 1998. That law paralleled a federal ban on so-called “assault weapons” and “large-capacity magazines” in effect from 1994 to 2004, explicitly adopting the federal definition of “semi-automatic assault weapon.” The Massachusetts law accordingly banned certain firearms by name, others as “copies and duplicates” of the named guns, and still others with a “features test” that applied to additional semi-automatic firearms.

Throughout the federal ban, magazine-fed semi-automatic rifles specifically designed to comply with the ban’s terms were legally available. Massachusetts legislators had notice that such firearms were available and considered federally compliant when they enacted the state law four years after the federal law. The reference to the federal law in Massachusetts’ own statute made it clear to all for nearly two decades that rifles which complied with the federal ban were also legal in Massachusetts.

Nevertheless, on July 20, 2016, Massachusetts Attorney General Maura Healy issued an “enforcement notice” that upset nearly two decades of settled law and unilaterally expanded the reach of the state ban.

In particular, the notice created two “tests” not present in the Massachusetts statute to redefine prohibited “duplicates” or “copies” of banned firearms. Law-abiding gun owners and retailers throughout the state were, with the stroke of a pen, declared in possession of contraband for having firearms that had been sold within the state without incident throughout the ban’s existence.      

Healy’s notice—although insisting that it was merely an effort to enforce the law as written—stated that firearms obtained prior to its publication date would be exempt from the new policies, subject to her right to alter or amend the guidance at a later date.

That revocable limitation was little comfort to those whose freedom was now subject to Healy’s prosecutorial whims. A number of firearm dealers, gun owners and advocacy groups suddenly on the wrong side of the law sued to block implementation of the enforcement notice.

The Workman case cited violations of due process, unconstitutional vagueness and violation of the Second Amendment.

Young ruled that “Massachusetts is free to ban these weapons and large-capacity magazines” and then mocked Scalia ...

Young’s opinion in the case first took the unusual step of dismissing the due process claims on ripeness grounds, even though the state itself had not raised this issue in its own defense. Young cited the nonbinding grandfather clauses, as well as the fact that no prosecutions had yet been brought against anyone who previously possessed the newly banned guns, to dismiss the claims that the enforcement notice retroactively criminalized behavior that was legal when it occurred. By doing so, Young suggested he knew more about the state’s future intentions than the state itself. 

Young also denied the vagueness challenges, finding the phrase “copies or duplicates” to be “sufficiently clear” to pass constitutional muster, even though the entire premise of Healy’s enforcement notice was that this phrase had been universally misunderstood until she herself finally set everyone straight.

Most egregious of all, however, was the court’s treatment of the Second Amendment claims. Here, Young’s bias was clear from the outset of the opinion. “For most of our history,” he stated inaccurately, “mainstream scholarship considered the Second Amendment as nothing more than a guarantee that the several states can maintain ‘well regulated’ militias.”

Putting aside the fact that federal judges are bound by Supreme Court precedent, not legal scholarship rejected by the high court, the earliest of Young’s citations for his position was a 1966 law review article.

Scalia’s opinion in Heller, by contrast, featured voluminous citations that contradicted these claims with direct evidence of the Framers’ intent behind our right to keep and bear arms. This included legal scholarship known to the authors of the Bill of Rights, contemporaneous writings, early commentary on the Second Amendment, as well as later 19th-century case law on the Second Amendment and state analogues.

This authority demonstrated that from the time of its adoption, the Second Amendment was well understood to protect an individual right to the types of “arms” in “common use at the time” for “lawful purposes like self-defense.”

That description certainly fits the AR-15 and its “copies and duplicates,” which are not only “common” in contemporary America but are the country’s most popular rifles.

Nevertheless, Young upheld Massachusetts’ ban on those firearms, ruling that the guns and magazines banned by that act “are not within the scope of the personal right to ‘bear arms’ under the Second Amendment.” Young’s “analysis” in this regard relied chiefly on the “reasoning” in an earlier case from the 4th Circuit, Kolbe v. Hogan. That opinion ignored the common use test and read Heller to leave wholly unprotected “weapons that are most useful in military service.”

Heller, of course, did no such thing. It instead used that phrase to describe fully automatic machine guns, like the m16, that are heavily restricted under federal law, notwithstanding their use in national defense by America’s professional standing army. The same paragraph even indicated that the very reason a ban on such machine guns is valid is because it affects only “sophisticated arms that are highly unusual in society at large.”

That description certainly does not fit the AR-15 and similar magazine-fed semi-automatic rifles. Even their detractors cannot legitimately claim they are “highly unusual” among law-abiding people.

But we don’t have to guess what Scalia himself might have thought of Massachusetts’ ban on AR-15s. That’s because he joined an opinion written by Justice Clarence Thomas that dissented from the Supreme Court’s refusal to review a 7th Circuit decision upholding a nearly identical ban from Illinois. Characterizing that and similar court decisions as “noncompliance with our Second Amendment precedents,” the dissenters explained Heller’s test for which arms are protected by the Second Amendment.

Heller,” Thomas wrote, “asks whether the law bans types of firearms commonly used for a lawful purpose—regardless of whether alternatives exist.” It “draws a distinction between such firearms and weapons specially adapted to unlawful uses and not in common use, such as sawed-off shotguns.”

“Roughly 5 million Americans own AR-style semi-automatic rifles,” Thomas noted, and “[t]he overwhelming majority of citizens who own and use such rifles do so for lawful purposes.” The opinion concluded: “Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.”

Yet Young ruled that “Massachusetts is free to ban these weapons and large-capacity magazines” and then mocked Scalia, insisting he “would be proud” of that determination.

By the end of April, Trump’s tally of judicial appointments included one Supreme Court justice, 15 U.S. circuit court judges and 17 U.S. district court judges. More are currently in the confirmation process.

With some 140 federal judicial vacancies still pending, and judges like Young still on the bench, it is more important than ever for Trump’s judicial nominees to be quickly confirmed by the U.S. Senate. There is no greater legacy for all of us who support the Second Amendment.

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