Government is using incrementalism in its relentless attack on the Second Amendment.
Two Headlines in the past week highlight the threat of Incrementalism on the Second Amendment.
HEADLINE 1. On Monday, the Court of Appeals for the Second U.S. Circuit issued a long awaited decision on the constitutionality of the most drastic gun control law in U.S. history, the New York SAFE Act of 2013. The Second Circuit ruled that nearly all of the law does not violate the Second Amendment.
The SAFE ("Secure Ammunition and Firearms Enforcement") Act was presented to the New York State Senate and passed into law in 15 minutes. No debate was allowed, and senators did not have time to read the bill before voting it into law.
The SAFE Act is a complete ban on the sale or transfer of all military-style semi-automatic rifles manufactured within the past several decades. It is a total ban on the AR-15, AK-47, M-14/M-1a, HK G3, Steyr AUG, and many other civilian copies of military firearms. Prior to the passage of the law, Gov. Cuomo publicly stated that he was considering "confiscation" of existing rifles, but the final version of the law allowed existing owners to keep their rifles as long as they registered them with the State. Upon the death of the owner, the rifle will be confiscated; it cannot be transferred to an heir within New York State.
The Heller Decision was seen as a victory for individual gun rights, but left the door open for incremental bans by state and local governments.
It was not until 2008 that the Supreme Court definitively came down on the side of an “individual rights” theory.1 Relying on new scholarship regarding the origins of the Amendment, the Court in District of Columbia v. Heller2 confirmed what had been a growing consensus of legal scholars – that the rights of the Second Amendment adhered to individuals. The Court reached this conclusion after a textual analysis of the Amendment,3 an examination of the historical use of prefatory phrases in statutes, and a detailed exploration of the 18th century meaning of phrases found in the Amendment. Although accepting that the historical and contemporaneous use of the phrase “keep and bear Arms” often arose in connection with military activities, the Court noted that its use was not limited to those contexts.4 Further, the Court found that the phrase “well regulated Militia” referred not to formally organized state or federal militias, but to the pool of “able-bodied men” who were available for conscription.5 Finally, the Court reviewed contemporaneous state constitutions, post-enactment commentary, and subsequent case law to conclude that the purpose of the right to keep and bear arms extended beyond the context of militia service to include self-defense.
Using this “individual rights theory,” the Court struck down a District of Columbia law that banned virtually all handguns, and required that any other type of firearm in a home be dissembled or bound by a trigger lock at all times. The Court rejected the argument that handguns could be banned as long as other guns (such as long-guns) were available, noting that, for a variety of reasons, handguns are the “most popular weapon chosen by Americans for self-defense in the home.”6 Similarly, the requirement that all firearms be rendered inoperable at all times was found to limit the “core lawful purpose of self-defense.” However, the Court specifically stated (albeit in dicta) that the Second Amendment did not limit prohibitions on the possession of firearms by felons and the mentally ill, penalties for carrying firearms in schools and government buildings, or laws regulating the sales of guns.
Incrementalism has crept into the discussion on capital punishment, as witnessed by Justice Scalia.
Justice Scalia: "Wouldn't surprise me" if death penalty struck down. Referencing rulings to restrict capital punishment and changing sentiment within the Supreme Court, Justice Antonin Scalia said Tuesday he wouldn't be surprised if the nation's highest court invalidates the death penalty.
Scalia addressed capital punishment during a University of Minnesota Law School appearance in which he also made clear retirement isn't in his near-term plans. The death penalty came up as Scalia described his judicial view that the Constitution is an "enduring" document that shouldn't be open to broad interpretation -- while sharing frustration that his colleagues too readily find flexibility in it.
Scalia said death penalty decisions from the court have made it "practically impossible to impose it but we have not formally held it to be unconstitutional." Earlier in his remarks, Scalia said "it wouldn't surprise me if it did" fall,
HEADLINE 2. HARVARD UNIVERSITY STUDY REVEALS LINK BETWEEN FIREARMS, CRIME AND GUN CONTROL
According to a study in the Harvard Journal of Law & Public Policy, which cites the Centers for Disease Control, the U.S. National Academy of Sciences and the United Nations International Study on Firearms Regulation, the more guns a nation has, the less criminal activity.
In other words, more firearms, less crime, concludes the virtually unpublicized research report by attorney Don B. Kates and Dr. Gary Mauser. But the key is firearms in the hands of private citizens.
The Issue should not be about guns, but about rights. The Founding Fathers were specific in their reasons for the Second Amendment:"The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms." - Samuel Adams, Massachusetts Ratifying Convention, 1788
"The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them." - Joseph Story, Commentaries on the Constitution of the United States, 1833
"A free people ought not only to be armed, but disciplined..." - George Washington, First Annual Address, to both House of Congress, January 8, 1790
"No free man shall ever be debarred the use of arms." - Thomas Jefferson, Virginia Constitution, Draft 1, 1776
"I prefer dangerous freedom over peaceful slavery." - Thomas Jefferson, letter to James Madison, January 30, 1787
"What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms." - Thomas Jefferson, letter to James Madison, December 20, 1787
"The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes.... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." - Thomas Jefferson, Commonplace Book (quoting 18th century criminologist Cesare Beccaria), 1774-1776.
"The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed." - Thomas Jefferson, letter to to John Cartwright, 5 June 1824
"On every occasion [of Constitutional interpretation] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying [to force] what meaning may be squeezed out of the text, or invented against it, [instead let us] conform to the probable one in which it was passed." - Thomas Jefferson, letter to William Johnson, 12 June 1823