Gun rights even crazier

(Washington) The government has the right to prohibit an abusive spouse from possessing a weapon, the United States Supreme Court recognized Friday.

On the face of it, this is just common sense and basic public safety. This type of question is not debated in almost no constitutional democracy.

But this is the United States, and American judges have stretched gun rights to the extreme. We are therefore almost surprised by such a moderate decision. Rendered almost unanimously (eight judges to one) in this ideologically divided court.

When we look more closely, however, we see all the madness of American law surrounding gun control displayed before our eyes. That’s exactly the word used by the Court’s youngest Justice, Ketanji Brown Jackson: the “madness” of the 2022 precedent in the Bruen case, which invalidated an old New York State law requiring obtaining a permit to carry a firearm.

Since then, to decide whether a gun control law is valid, judges must ask whether it is consistent with the country’s “history and tradition” in this area. We will wonder if, in the 18th century^e century, there was a similar restriction. We will delve deep into the legislative annals to find comparable regulations.

In other words, in our time when there are more firearms than citizens in the United States, and where they are more powerful than ever, we look for precedents in the laws of the time where you had to reload your musket by pushing the powder at the bottom of the barrel.

This is indeed quite crazy, and lower court judges are vaguely desperate when it comes to finding the right method of analysis.

In the case decided on Friday, a man was subject to an order preventing him from having contact with his ex-partner, whom he had threatened and assaulted. The police seized all his weapons, without waiting for a criminal trial, as the law allows.

Chief Justice John Roberts therefore wondered whether, when the Second Amendment was drafted in 1791, the framers of the Constitution already had in mind similar regulations for disarming dangerous people.

He comes to the conclusion that yes, citing several English and American laws. None of these laws, however, concerns domestic violence. This would also be an anachronism. Rather, it was the husband who was protected by the law.

We therefore see the limits of this “historical” analysis and the “tradition” of laws.

“From what era, or eras, should we draw historical examples? », asks Judge Jackson. “How many analogous precedents are needed to establish a “tradition”? Who were these laws intended to protect? Our Court should be aware that in real life, legislators are at a loss when it comes to making laws that respect the Second Amendment. »

The proof is that four of the six conservative judges of the Court thought they had to write their own opinion to justify their support for the validity of this law!

The most conservative justice on the Court is not one of those appointed by Donald Trump. It’s Clarence Thomas (perhaps tied with Samuel Alito). He is the only dissenter in this judgment and would have declared this ban on possessing a weapon for a violent spouse unconstitutional.

First, for Judge Thomas, it is inconceivable that the weapon would be taken away from a person who has not even been convicted of a crime. Above all, the government has not proven that its law “is consistent with the historical tradition which traces the contours of the right to bear a weapon”.

Purely logically, he is not wrong. I mean: it’s consistent with this court’s pro-gun shift. If the test consists of verifying “tradition” by referring to laws adopted 250 years ago, it is normal that it does not find a law really similar to the time of the Founding Fathers…

Just as logically, he can argue alarmistly that this decision “jeopardizes the Second Amendment and several others.”

The decision rendered a week earlier by this same court is undoubtedly even crazier, at least in terms of its net result: allowing the use of an accessory which de facto transforms “semi-automatic” weapons into machine guns.

The device called bump stock became illegal after the Las Vegas massacre in 2017. A man, from the top of his hotel room, killed 58 people and injured more than 500 using this type of gadget with which his “legal” weapon was equipped. .

Since 1934, machine guns have been illegal in the United States. A submachine gun is defined as a weapon that can fire “automatically more than one shot, without manual reloading, by simply activating the trigger”. A semi-automatic weapon, like the popular AR-15, only fires one shot at a time. An ordinary person can still easily fire 60 rounds per minute, and a “sports” shooter three rounds per second, or 180 per minute.

With a weapon equipped with a bump stock, a shooter can reach 400 to 800 rounds per minute. The Bureau of Alcohol, Tobacco, Firearms and Explosives determined after the Las Vegas massacre that such an accessory de facto transformed a semi-automatic weapon into an automatic weapon, therefore into a “machine gun” (machinegun, according to the term of the 1934 legislation). A decision taken during the mandate of Donald Trump, with which even the hard-line National Rifle Association agreed at the time.

The three progressive judges wrote that obviously, a device which allows hundreds of shots to be fired without having to move the finger makes the weapon it equips a machinegun.

But no, replied Justice Thomas, on behalf of the six conservative judges. The magistrate launched into a long technical explanation, supported by six illustrations, to show that the bump stock does not allow you to shoot “automatically”, but only faster.

I won’t go into technical details, but basically, for the mechanism to work, you have to use both arms while adjusting the pressure of the weapon on the shoulder. The recoil of the weapon causes the bullets to fire without the need to move the finger. BUT – it’s a big one but for Judge Thomas – there is another movement of the arm. It does not change the nature of the weapon, it only makes it more efficient, as if a shooter were using it “at lightning speed,” he writes.

The historical argument is unavoidable, inseparable from this American debate. Chief Justice Roberts writes that “the spark that ignited the Revolution” was the moment when a British governor sent colonial troops to seize guns from farmers in Massachusetts. He also cites the need for African Americans to protect themselves with weapons against slave states after the Civil War. The idea of ​​self-defense with weapons is central to all this legal construction around the fundamental right to carry a weapon.

The right to possess a firearm “is not unlimited,” wrote the chief justice, but it is “one of the fundamental rights necessary for our system of ordered liberty.”

Judge Sonia Sotomayor writes in the context of this machine gun case that the cause is nevertheless very simple. A semi-automatic weapon becomes a machine gun with this device because it “can fire continuously without any human intervention other than maintaining forward pressure.” In the end, “what counts is the action of the shooter, through the internal mechanism by which he manages to fire continuously.”

By preventing the ban on these accessories, we are circumventing a ban that makes sense through technical subtleties, she writes. And we are preparing the ground for other deadly events.

To this, the conservative majority responds that Congress only has to pass a law to better define “machine guns”. But the emotion that followed the Las Vegas massacre has now evaporated. And Republicans like the NRA, who yesterday were still in favor of this restriction, say that there is no question of legislating on this. Who says in any case that this court would validate such a law…

“There are days when I arrive at my office at the Supreme Court, when one of our rulings is made public, and I close the door and I cry,” Justice Sotomayor told an audience at Harvard this spring.

“There were those days. And there will probably be more. »