Governor Dannel P. Malloy and co-defendants/appellees in the Shew v Malloy challenge to recently-enacted Connecticut gun laws filed their brief Thursday in the United States Court of Appeals for the Second Circuit.
“At 178 pages long, it’s anything but brief,” Chris Lemos of the Connecticut Citizens Defense League, a lead plaintiff in the case, observed. “[W]hat I’ve read so far would be laughable if it didn’t involve the infringement of our Constitutional rights.”
That assertion is what the defense attempts to refute, following a very similar strategy to one upheld on Tuesday in Kolbe v O’Malley, a challenge to Maryland’s Firearm Safety Act. In that case, U.S. District Judge Catherine C. Blake ruled “assault weapons” and their standard capacity magazines “fall outside Second Amendment protection as dangerous and unusual.”
The contentions presented by Malloy’s defense are based on essentially the same arguments, and those can be looked to as bellwethers for what to expect, anticipate, prepare for and refute.
That “assault weapons” are dangerous, that they’re not in common use, and that they’re deemed battlefield weapons are all ploys designed to sway those who know no better by those who do. There are definite functional and tactical use differences between semi-autos and what the military deploys with, but now that Violence Policy Center-inspired “confusion” tactics can be elevated to settled law by the courts, the same confusion can be extended to nullify why the right to keep and bear arms was codified in the first place.
The key point being ducked is that the phrase “in common use at the time” was in reference to the militia component of the Second Amendment, and referred to the expectation that citizen soldiers would muster bearing arms suitable to confront and prevail against professional military forces. Nothing with the passage of time has changed that, except through the deliberate indifference of the government in discharging its duties ensuring that which was once commonly understood as “being necessary to the security of a free State.”
The point was further confirmed in the opinion rendered in the 1939 Miller case, in which it was found a short-barrel shotgun could not be determined protected under the Second Amendment because the court had no evidence its possession had “some reasonable relationship to the preservation or efficiency of a well regulated militia [or] that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”
The function of the militia, defined as “all males physically capable of acting in concert for the common defense [and] bearing arms supplied by themselves and of the kind in common use at the time,” was -- and is -- to field citizen soldiers. And these citizens bore arms that were suitable for that purpose, “ordinary military equipment” intended to be taken into “common defense” battles.
If the court accepts the contentions by the defense, great damage will be done, not only to deny technology that is over a century old to the people, and not only to eviscerate legal recognition of citizen rights and duties to act in concert for the common defense.
If the “in common use at the time” standard is held to recognize anything different than what is available to soldiers in the field, every new development in personal weapons technology will, by default, be denied to the people by the very body charged with facilitating a citizen militia and expressly forbidden from infringing with the right of the people to keep and bear arms. At that point, each new infringement can and will be used to diminish commonality, itself an unspecific and arbitrary standard subject to further political distortions in order to ban anything the state deems in its interests to eliminate.
UPDATE: The Maryland case cited above has very similar implications on the points raised in this report. See “Court Upholding Ban on Militia-Suitable Firearms Ignores Key Second Amendment Purpose.”