While academia isn't where most people go if they want to get rich, there's still a lot of money flying around. It's big business, only it doesn't require anyone to produce anything of any substance. That's why we get studies that do weird things like look at the effects of LSD on grasshoppers or whatever.
But they do like to produce leftist BS that they can then use to try to push their agenda on things like climate change or gun control.
And it's on the latter that I found something from Duke University's anti-gun effort, where gun control aficionado and attorney Hayley Lawrence tries to make a good argument for why the DC District Court was wrong in overturning the district's magazine ban, and completely misses, well, everything.
D.C.’s last attempt at undermining the “in common use” argument likewise failed. The District asserted that LCMs are not “in common use” because “it is extremely rare for an individual to fire more than ten rounds in self-defense.” But again looking to Heller, Judge Deahl explained that the Second Amendment is “not concerned with how often arms [a]re actually fired in self-defense”; rather, Heller requires that we ask only whether the arms at issue were “typically possessed by law-abiding citizens for lawful purposes.”
To me, that’s conflating two different principles. Either we ask whether the weapon is in common “use” for self-defense—which is to say, the data shows us that people actually use the arm at issue to defend themselves—or we ask whether the weapon is commonly owned or possessed with the intention of using it for self-defense (which is what Judge Deahl apparently suggests). He explains, “Most firearms held in self-defense will never be fired in self-defense at all—that cannot justify a ban on ammunition simply because it is rare for law-abiding citizens to actually shoot some attacker, or because blanks might suffice to scare most attackers off without live ammunition.” Furthermore, according to Judge Deahl, “law-abiding citizens . . . regularly fire more than 10 rounds for lawful purposes like target practice and marksmanship,” and because hunting is a protected activity under the Second Amendment, LCMs are protected arms for more than self-defense purposes.
The problem here is that Lawrence is completely misrepresenting what Heller actually found. Justice Antonin Scalia used the "in common use" thing to include all lawful purposes, up to and including self-defence, but it was never limited to just that.
By that reasoning, though, hunting rifles and shotguns for trap shooting can be banned entirely because those aren't owned for self-defense purposes at all, right? The thing is, no one has ever argued any such thing. She even acknowledges it in that last sentence, which seems to fly in the face of everything she tried to establish.
So Lawrence is trying to equate the idea that Heller was purely about self-defense, so she can also try to play games with statistics to justify banning larger-capacity magazines, while also trying to downplay that it's not just about actual self-defense uses.
Yeah, lawyers like to play word games, but this is especially stupid. It's right up there with Bill Clinton asking what the definition of "is" is.
The court, apparently persuaded that Heller’s pronouncement that “in common use” today necessarily forecloses the existence of a history of similar regulation, goes on to hold (in a sort of belt-and-suspenders approach) that even if the court were required to undertake a separate historical analysis, the District failed to “carr[y] its burden of identifying any historical analogue banning bearable arms that approach the ubiquity of 11+ magazines, much less a historical tradition of similar bans,” noting that its analogy to gun powder storage laws were inapt because they “did not ban anything.”
So she's upset that the district court followed the precedent set down by the Supreme Court? Uh...now, I'm not an attorney, but isn't that kind of what they're supposed to do? Isn't that kind of why the Supreme Court takes up cases and hands down rulings? The entire point of the Court reaching decisions is to lay the foundation for lower courts to follow. It's kind of how that whole system works.
But the stupid gets worse.
This opinion, like so many others applying Heller, Bruen, and their progeny, lays bare the logical inconsistencies of the prevailing Second Amendment doctrine. First, we have the recurring and troublesome level-of-generality question: can weapons deemed by legislatures to be “dangerous and unusual” be banned? Or do we have to find historical analogues for, say, restrictions on the number of rounds persons were allowed to carry? Nor does the majority contend with the fact that, at the Founding, even trained soldiers could fire only “three or four shots in a minute, or every 15 or 20 seconds.” That’s a far cry from 11+ shots in a matter of seconds, which modern semiautomatic weapons with LCMs permit. It’s also worth noting, as the dissent (penned by Chief Judge Blackburne-Rigsby) does, that even if 11-, 15- or 17-round magazines are in common use and therefore protected by the Second Amendment, the defendant in this case was convicted for having 30-round magazines. The majority, for its part, did not even attempt to show that 30-round magazines are in common use for self-defense.
Ah, the old, "When the Second Amendment was written, they only had muskets," argument, though this is a little rephrased to appear slightly less idiotic. After all, she's not opening herself up to the fact that rifles existed on Revolutionary War battlefields, so good for her.
That still doesn't make it close to a good argument, though.
First, of course, the Second Amendment is the only place anti-gunners try to pull this crap. They don't say that free speech doesn't exist on the internet because it didn't exist at the time of the nation's founding, nor that the Founding Fathers couldn't have envisioned it. They might try to limit free speech, of course, but they don't make this particular argument, nor would they accept an argument that the Founders didn't envision Islamic suicide bombers, so freedom of religion shouldn't stand. With that, why should we even entertain this nonsense?
Of course, the district court didn't, which is why Lawrence is so upset.
"But 30-round magazines!!!"
Shut up. Please, for the love of all that's holy, shut up. The case is about whether a government can restrict magazine capacity. It doesn't matter if it's 11 rounds or 100. If they can, then they can, but if they can't limit it at 10 rounds, as the District of Columbia did, then how many rounds over that limit the defendant had is irrelevant. I'm not a lawyer, and I can see that.
She wraps up with this little nugget.
The second overarching issue is the profound intellectual dishonesty of the “common use” doctrine. Defining the bounds of a constitutional right by metrics of what is in common use today is necessarily an unoriginalist—and indeed living constitutionalist—principle. Allowing consumers and gun manufacturers define the scope of the Second Amendment before legislatures can act is no way to do constitutional law. Indeed, in no other constitutional context would we even countenance such a thought. And as a recent paper by Andrew Nell explains, even setting aside the merits of the common use test, it has proved unadministrable at best, and “hopelessly subjective” at worst.
That's right. The person who thinks "shall not be infringed" isn't a thing is going to lecture everyone else on originalism.
Again, if the Second Amendment is somehow limited to the technology of the 18th century, then, as Second Amendment attorney Kostas Moros asks, why didn't we see limits on ammunition capacity in the 19th century when we started seeing major leaps in repeating firearms? Some of those guns carried more than 11 rounds. That era also saw the dawn of magazine-fed semi-automatic firearms, such as the Luger and the C-96 Mauser.
So yeah, this is what passes for intelligent arguments among the gun control crowd, but here's the kicker: None of this is new. These arguments were being made long before Heller, McDonald, Bruen, or any of the Second Amendment cases that the Supreme Court has ruled on in the 21st century. They weren't convincing then and they won't be convincing now.