Jim Jordan Outlined the Hideously Extreme Republican Attitude Towards Gun Regulation
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Jim Jordan might be one of the loonier members of the House Republican caucus, and he's certainly one of the more powerful avatars for the dominant aesthetic now adopted by luminaries of the American right: Pissed Off Wrestling Coach/Little League Dad. It ain't about policy, it's about making sure people know you're loud, you're in charge, and you're mad at all the right people. But Jordan does make a comment on policy here and there, and in the case of regulating gun ownership, he laid out a position to CNN's Manu Raju from which it would be difficult to find many elected Republicans at any level dissenting:
Asked Jim Jordan why not raise the age to 21 of purchasing semi-automatic rifles. “It’s unconstitutional. Even the 9th circuit just said it was unconstitutional.” Conservative panel ruled 2-1 that an under-21 ban was unconstitutional, though it could be reversed on appeal
The position here is simple: Any law governing any aspect of gun ownership is a violation of the Second Amendment because we've got judges we installed for the purpose who will say so. The Ninth Circuit is traditionally known as a liberal court, but it's actually made up of 29 judges and they don't all often serve on the panel that hears a particular case. In this case, two of the three judges were Trump appointees—Ryan Nelson and Kenneth Lee—and they were the ones to say a ban on most 18-year-olds buying semiautomatic rifles was unconstitutional. This is how Nelson's opinion began:
America would not exist without the heroism of the young adults who fought and died in our revolutionary army. Today we reaffirm that our Constitution still protects the right that enabled their sacrifice: the right of young adults to keep and bear arms.
Yes, as we all know, Fort Ticonderoga was taken by a random group of individual teenagers wielding AR-15s. Actually, it was taken by a New England militia called the Green Mountain Boys. Ah, militia. Sounds familiar.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
That there's the Second Amendment. Like with the First, the opening phrase here has been pretty much erased in recent years. But until the '80s and '90s, when the gun lobby made a major push to reinterpret the amendment as a broader enshrinement of individual gun rights, it was widely held that "a well regulated militia" referenced the organized and trained state and local militias that were crucial in the revolutionary struggle, and which the Founders considered an ongoing component of national defense. There is debate around whether "the security of a free State" refers to repelling outside threats or would-be despots within the State. But the most potent defense against a tyrannical government that they inserted in the Constitution were the checks and balances between branches and the First Amendment. Liberty is protected by maintaining a government of laws rather than of men. That remains true today, whatever the outlandish John Wayne talk you hear: our best defense against tyranny is freedom of speech and association and the press, along with the rule of law. It is not this fantasy where people are going to defeat the United States armed forces with their AR-15s. The absurdity of this notion was highlighted elsewhere in Nelson's opinion:
Though public safety is important, firearms were also dangerous in 1791, when the Second Amendment was ratified, and the government then also had an interest in promoting public safety.
Buddy, if you're equating a musket to a semiautomatic rifle I don't think you're winning the argument. But who needs the merits when you've got the votes? Elsewhere, as Elura Nanos at Law & Crime pointed out, Judge Nelson evaluated shotguns—which Californians under 21 could still access under the then-current legal regime—as "a self-defense weapon which is not ideal or even usable in many scenarios." At what point is this just an unelected legislator making policy from the bench, overruling the representatives Californians actually elected?
Still, it is true that the Supreme Court established an individual right to bear arms in the home for self-defense under the Second Amendment. Granted, it was in 2008, even if people owned guns as individuals before that and some state constitutions make provisions for an individual right to bear arms. At the federal level, it was established 14 years ago by Antonin Scalia, and observers have raised eyebrows that a professed "originalist" and/or "textualist" would discard the opening phrase of the Amendment to impose a modern interpretation. (Scalia said the "militia" talk was merely a "preface" that was not integral to the whole deal, and thus didn't limit the rights enumerated to citizens in militias.) Even still, I'd tend to agree that some people need guns for the purpose of self-defense. Maybe they live in a remote area where police will not respond in time if there's a problem. Maybe there is just a basic right to defend your castle in America. But even Scalia, not exactly a bleeding heart, made this provision within his opinion in Heller vs. District of Columbia.
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
I guess Antonin was a RINO. His colleague Justice Samuel Alito has already signalled this year that the Court will strike down a 110-year-old New York law restricting the concealed carry of firearms. That would expand the right to a gun in the home for self-defense to the right to one in public. Never mind that these "prohibitions have been upheld" previously. In fact, a judge appointed by George W. Bush found there's 700 years of English and American case law upholding the right of state and local authorities to regulate weapons in the public square. Precedent is for suckers. They've got the votes. After all, Yale Law Professor Reva Siegel told the Washington Post that Scalia's opinion in Heller above was "the first Supreme Court decision to strike down a gun-control law in constitutional history." The same will likely go for the Democrats' proposed ban on high-capacity magazines, which most sane people would classify as "dangerous and unusual weapons" considering they could allow you to shoot a dozen people without reloading. And apparently it goes for their proposal to raise the age to buy a semiautomatic rifle to the lofty heights of 21. Unconstitutional! We've got the votes.
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