Wednesday, March 10, 2010

Put That In Your Musket And Shoot It!

As noted on Universal Hub, today in Commonwealth v. Runyan, No. SJC-10480, the Supreme Judicial Court held (i) that the Second Amendment does not apply to the states; and (ii) that even if it did, requiring people to lock up their guns would still pass constitutional muster. The former issue is currently under intense consideration in the United States Supreme Court. For much more on that, the best place to go is here.

As for the latter issue, Justice Gants makes what appears to be an unassailable point in footnote 8:
We also note that, even if a firearm were secured in the manner required by G.L. c. 140, § 131L (a ), a gun owner threatened in his or her home today would be able to fire the weapon in self-defense at least as quickly as would a gun owner in 1791, when the Second Amendment was adopted. At that time, laws were in effect requiring that gunpowder be stored separately from firearms, which meant that a law-abiding homeowner acting in self-defense would need time to load and fire a musket or flintlock pistol. See Heller, supra at 2849-2850 (Breyer, J., dissenting). A skilled soldier of that time using specially prepared cartridges required a minimum of fifteen to twenty seconds to load and fire a musket; a less skilled soldier could fire no more quickly than once per minute. Hicks, United States Military Shoulder Arms, 1795-1935, 1 Am. Military Hist. Found. 23, 30-31 (1937). A gun owner today could remove a firearm from a locked container or release a trigger lock more quickly than that.
If you're going to be an originalist, you'd better be prepared to deal with the consequences.*

*I predict without fear that the usual suspects will try with all their might to puncture Mr. Hicks's "once per minute" datum. (The good thing about this prediction is that I'll even be happy if I'm wrong . . . .)


Adam Gaffin said...

To my non-legal eye, the other SJC gun decision today (yes, of course, there was another!) is possibly even more significant, because it goes beyond the question of gun safety and says that Massachusetts can regulate guns any way it wants, because a) the Second Amendment doesn't apply here and b) the equivalent section of the state constitution does not give individuals the right to own guns.

Of course, that could all change in a few months ...

Terry Klein said...

Yeah, it almost certainly will change when the Supreme Court rules on the McDonald case. There are five strong votes for the notion that the 2d Amendment confers an individual right to bear arms. Those same five justices will find that the second amendment applies to the states via the due process clause of the 14th Amendment. All they have to find is that an individual right to bear arms is a fundamental right "implicit in the concept of ordered liberty." I think there are five votes for that. Because the SJC didn't really address whether the permit requirement is consistent with the 2d Amendment, they'll probably have to rehear the case. But the Runyan case would indicate to me that it will probably come out the same way.