At last, a couple of federal judges have followed to a logical conclusion the “originalist” fallacy often applied to the Second Amendment. In a case before a federal appeals court in Richmond, Va., that seeks to undo gun regulations in Maryland and beyond, Judge J. Harvie Wilkinson III had a question for an advocate representing gun rights groups.
“Have you ever fired an M16?” the judge asked, as reported last week by the Washington Post. The advocate said he had not “I have,” said Wilkinson, an Army veteran President Ronald Reagan appointed to the U.S. Court of Appeals for the 4th Circuit. The judge said he remembered firing an M16 at targets of human silhouettes while serving in the 1960s. “When the bullets struck the human being, it splintered them into all sorts of different pieces,” he said during oral arguments in cases challenging gun laws in three states “There was very little left of the human being,” Wilkinson said. “And that was a much earlier model of the M16. It’s since been perfected and perfected and been turned into a more lethal weapon than the one I used.”
A civilian version of the M16 is the semi-automatic AR-15.
“No matter how lethal the weapon, it’s all past the ability of the state to regulate?” the judge wanted to know. “What’s the limiting principle of all this? Where does it stop?”
Peter A. Patterson, the attorney representing gun rights groups, said the AR15 that Maryland bans is “relatively underpowered.” Family members of shooting victims in Uvalde and Sutherland Springs would disagree. Fire power, though, is irrelevant in his view. Fully automatic weapons, if they were commonly owned by law-abiding people, could not be legally banned, either, according to Patterson, because the U.S. Supreme Court ruled two years ago that only weapons that are both “dangerous and unusual” can be restricted.
The justices on the Maryland appeals court appear unlikely to agree with the Second Amendment absolutist, whose ultimate goal is to reach the Supreme Court. Chief Judge Albert Diaz, a Barack Obama appointee to the 4th Circuit, had a follow-up query for Patterson: “Under your theory, if Congress had never gotten around to banning fully automatic rifles and machine guns, and they had become popular in common use ... a state could not ban” them, as reported by the Washington Post. “What about a bazooka used for recreational purposes? A tactical nuclear weapon? So there’s no limit. Essentially, once the cat is out of the bag, the Second Amendment trumps all?
Yes. Patterson said he believes that’s the Supreme Court’s position. “If something is in common use, it can’t be unusually dangerous. It would not make any sense to the founders of this nation to say that, as firearms technology develops, we’re going to deprive our militia of that.”
Patterson was alluding, of course, to language from the Second Amendment decreeing that “a well regulated militia” is “necessary to the security of a free state.” For years, courts interpreted the language as referring to military service. In 2008, the Supreme Court ruled that the Second Amendment protects an individual’s right to own firearms unconnected to military se In 2022, the high court went further, ruling that an individual’s Second Amendment right could be restricted only if historical evidence existed to show that drafters of the Constitution would have accepted that limitation. So far, no evidence has turned up revealing how Franklin, Jefferson and colleagues felt about portable anti-tank rocket launchers known as bazookas or tactical nuclear arms. Certainly we’re in little danger of nukes in every suburban garage but other new weapons could become more common and affordable.
Chauvinist Texans that we are, Patterson’s comments and the U.S. Supreme Court’s relatively recent obeisance to the dictates of history prompted us to revisit our own state’s past interpretation of the Second Amendment. In a fascinating article from a 2016 issue of the Texas A&M Law Review, legal scholar Mark Anthony Frassetto explores how the Lone Star State could be playing a more significant role in the intense debate about the relevance of history to constitutional interpretation, in this case to the meaning of the Second Amendment.
Frassetto points out that Texas was “a uniquely violent place” both before and after the Civil War – more violent than northern states, more violent than its fellow Confederate states. In response, the state’s Radical Republican governor, Edmund J. Davis, persuaded his cohorts in the Legislature to pass a law forbidding any citizen from carrying weapons into a variety of public venues, including churches, schools, ballrooms, election platforms “or any other place where people may be assembled to muster or to perform any other public duty, or to any other public assembly.” The enumerated weapons in the 1871 law included any “pistol, dirk, dagger, slung-shot, sword-cane, spear, brass-knuckles, bowie-knife, or any other kind of knife ... (without) reasonable grounds for fearing an unlawful attack on his person ...”
In the three years following enactment of the public- carry prohibition, two legal challenges reached the Texas Supreme Court. As Frassetto points out, the first was heard by a court made up entirely of Davis appointees sympathetic to Reconstruction. Not surprisingly, this socalled “Semicolon Court,” scorned by judges and attorneys in post-Reconstruction Texas, decisively upheld the law under both the Second Amendment and its analogue in the Texas Constitution.
The second challenge came in 1874, after the newly installed Democratic Legislature removed every member of the Supreme Court from office and appointed a new Democratic slate of judges. Four-fifths of the judges on this so-called “redeemer court” were former Confederate officers. Although the new judges took a much broader view of the right to bear arms, they concluded that the law did not infringe on the right. It would not be the last word on guns, of course, but it’s surprising that, in Texas, it was one of the first.
The high court was persuaded that the Texas restrictions did not violate the Second Amendment, perhaps by the argument presented by the attorney representing the state, a man identified as J. Walker. “The law under consideration has been attacked,” he noted, “upon the ground that it was contrary to public policy, and deprived the people of the necessary means of self-defense; that it was an innovation upon the customs and habits of the people, to which they would not peaceably submit. We do not think the people of Texas are so bad as this, and we do think that the latter half of the nineteenth century is not too soon for Christian and civilized States to legislate against any and every species of crime.”
Thanks to Walker, for more than a century, a ban on public carry remained in place, but was eroded over time as prohibited locations and permit requirements were reduced. Even now, we rarely see dirks and sword-canes on the streets of this “Christian and civilized” state, not to mention fully automatic military weapons. In a state that leads the nation in the number of mass shootings, perhaps there’ll come a time when history repeats itself. Maybe one day we will spurn the Second Amendment absolutists among our fellow Texans and again allow common sense to hold sway. Lives depend on it.
