OSD 126: The Fourth Circuit short-circuits the GCA

Notes on the nature of rights.

This week the Fourth Circuit Court of Appeals (the federal appeals court with jurisdiction over Maryland, Virginia, West Virginia, and the Carolinas) struck down the federal ban on 18- to 20-year-olds buying handguns.

This was notable for a few reasons. First, the ban has been around for a while. It was passed as part of the Gun Control Act of 1968 — the last person to not be affected by it was born in 1948. Second, courts have been reluctant to strike down federal gun laws. There was Haynes v. United States in 1968 and United States v. Lopez in 1995, but the laws in those cases were struck down on Fifth Amendment and Commerce Clause grounds, respectively. Let us know if you know of an appeals court striking down a federal gun law on Second Amendment grounds, because from here this looks like a first.

For more on the details of the ruling, check out Rob Romano’s (aka @2Aupdates) excellent thread of highlights from the ruling. The case is called Hirschfeld v. ATF, and Rob’s breakdown is awesome. (One logistical note for all the young adults excitedly reading this: the ruling will have to survive a number of appeals before it goes into effect.)

Apart from the ruling’s legal reasoning, there’s another interesting thing to flag about it: its obviousness.

Before National Firearms Act of 1934 (and again ever since the passage of the 1994 federal assault weapons ban, which expired in 2004), the dominant opinion about gun rights was that they’re a right you're born with. In other words, a human right.

But in a unique period from 1934 to 1994, that opinion was largely suspended in the eyes of federal law. A quote from Heller is a crisp summary of what was flawed about that suspension: “The very enumeration of the [Second Amendment] right takes out of the hands of government … the power to decide on a case-by-case basis whether the right is really worth insisting upon.”

In other words, the dominant approach during that 60-year high tide for gun control (btw see this article for how and why that tide has been waning ever since the mid ‘90s) was that you’d start with an idea for a law, and then let the right bend around that. “A law” is just a term for “a government decision which binds everyone in that jurisdiction”. So in other words, this model was one where government makes a decision and then people’s rights have to figure out a way to live with that. This makes sense if one’s view is that the right is a nice-to-have — if the right is one that isn’t really worth insisting upon.

There’s a word for those sorts of rights: privileges. A right that one needs to prove a good reason to have is no right at all. This is easier to see with rights that have less culture war baggage. For freedom of religion or freedom from random searches, there’s broad agreement that the right isn’t what has to accommodate the law. The right stands firm, and laws have to flex around it.

That’s not because people patiently proved why they need to exercise their religion (or lack thereof) or why they need to not be searched. It’s because they didn’t prove it at all. The right itself is enough, and there’s no “power to decide on a case-by-case basis whether the right is really worth insisting upon.”

So the Fourth Circuit’s ruling isn’t an expansion of gun rights. It’s just a court agreeing that gun rights are rights at all. The rest follows naturally from that. It’ll be interesting to see what happens if courts keep pulling on that thread.

This week’s links

Jake Charles on The Reload podcast

A conversation between Stephen Gutowski (host of the podcast and founder of The Reload) and Jake Charles, executive director of Duke University’s Center for Firearms Law.

The New York Times published a long profile of Black Rifle Coffee Company

Interesting to see how the NYT’s sensibilities perceive BRCC. It’s more positive than you might expect. Definitely some critique in there, but there’s also an open-minded look at the fact that BRCC is catering to customers that a lot of big companies haven’t valued.

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