Come on, i' God's name; once more toward our father's.
Good Lord, how bright and goodly shines the moon!
The moon! The sun; it is not moonlight now.
I say it is the moon that shines so bright.
I know it is the sun that shines so bright.
Now, by my mother's son, and that's myself,
It shall be moon, or star, or what I list,
Or, ere I journey to your father's house.
Go on, and fetch our horses back again.
Evermore cross'd and cross'd; nothing but cross’d!
Reality has imitated art. In Massachusetts, US District Judge William Young issued a ruling last week, in Worman et al. v. Healey, that the AR-15, the “modern musket,” is not a weapon that is protected by the Second Amendment.
Interestingly, he based a large part of his ruling on Heller v. District of Columbia.
This is where things get interesting. In his ruling he states:
“More specifically, Justice Scalia explained, ‘weapons that are most useful in military service — M-16 rifles and the like —‘ are not protected under the Second Amendment and ‘may be banned.’” (Civil Action No. 1:17-10107-WGY)
(For those of you following along at home, this is where Judge Young tells us that the sun is, in fact, the moon.)
We scratch our heads and read Heller, where Scalia actually states:
“This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that ‘have some reasonable relationship to the preservation or efficiency of a well regulated militia.’)” (Heller v. District of Columbia 554 U. S. ____ (2008)
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So… how did we get from “Only arms that have some reasonable relationship to the preservation and efficiency of a well-regulated militia” to “Weapons that are most useful in military service are not protected by the Second Amendment”?
They make it up.
We have been amused at the tortured logic that the anti-gun courts have used to justify prohibitions on firearms and firearms use. From the Fourth Circuit, in Kolbe v. Hogan, suggesting that the AR-15, the most ubiquitous rifle in America, was not in “common use,” to the proposal of “intermediate scrutiny” as a balancing test for laws that affect the Second Amendment.
When a fundamental right is potentially affected by a law, the “test” to determine whether that right is volitive of the Constitution is called a strict scrutiny analysis. Essentially, there must be a “compelling state interest,” and there must be no “less restrictive alternatives.” If the right being affected is not a “fundamental right,” then the State must only show a “legitimate state interest,” and the law must have a “rational basis” in achieving that interest… Anti-gun Appellate Courts, knowing that virtually nothing survives a strict scrutiny analysis, but being completely aware that a fundamental right should require strict scrutiny, came up with… on their own… a brand new “intermediate level of review”… cause, hey… why not?! Appellate Courts have elected to test the suspect law by seeing if “there is an important government interest, and the law is substantially related to achieving that interest.”
But hey, why stop there?
If the test does not get you the results you were looking for, then bypass the test completely and just completely rewrite the controlling case law!
That is what Judge Young did.
Stare decisis. Who needs stare decisis? We can use Makis it Upis!
We have a “well-regulated” legal system (to quote the Framers), and that legal system is predicated on predictable outcomes. When the outcome of a controversy…especially a controversy that is based on a fundamental right…is exclusively based on the political whims of a jurist, the social underpinnings of our legal system are shaken to their core. Without reliance that Madam Justice is blind, our society fails.