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Forget Red Flags, This Is The Constitutional Fight Over Guns Some State Needs To Start

People trying to regulate guns simply aren't bold enough.

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In the aftermath of the last spate of deadly mass shootings, there was a little flutter among conservatives that maybe this is one of those times where they may need to throw the tiniest of common sense bones to the Democrats. With an assault weapons ban garnering 67 percent approval in Fox News polls, conservatives started to coalesce around the idea of “red flag” laws that would stymie certain at-risk individuals from purchasing an arsenal. The National Review talked about how it was the “right” idea and congressional sources started leaking that the policy would have bipartisan support. It is, literally, the least they could do after their thoughts and prayers failed to pan out.

Folks who’ve been down this road before could see it was coming. It was all a ruse to keep people occupied until Trump could leak that he wants to buy Greenland — probably because he doesn’t understand maps and actually thinks it’s bigger than Africa — and get everyone distracted from the largely avoidable crises that seem to strike every couple of weeks now. The media cycle approved grieving period behind us, right-wing objections to these laws are popping up everywhere declaring it unconstitutional to put any regulations upon gun ownership — even if that restriction is telling a psychopath with a published manifesto that they may not be right for an AR-15.

For anyone still clinging to the idea that “strict construction” or “textualism” are consistent judicial philosophies and not mealy-mouthed fig leaves for “the contemporary policy goals of the Republican Party” the violent erasure of “well-regulated” from the very text of the Second Amendment is the opening and closing argument against that fairy tale. The Originalists fare no better with the Federalist Papers making clear that the original public meaning of the right to bear arms was founded in states’ rights — the ability of states to maintain part-time, organized fighting forces supplied by citizens. With a straight face conservative judges have written that the original meaning of the Second Amendment could only be divined by ignoring every contemporaneous source and using clippings from almost a century after the fact. Meanwhile, none other than George Washington led an army while sitting as the president to go open a can of whoop-ass on people who thought they could stockpile weapons outside of the state militia system (they gave up instantly). Federalist 29 explicitly argues that these militias would be called together by the states to train “once or twice in the course of a year.” Hardly descriptions of an original public meaning that would embrace the status quo.

The problem with red flag laws and gun regulations generally is that they suffer from an effort to be entirely reasonable with an entirely unreasonable corporate lobby. Any piecemeal reform will get crushed under the decades of disingenuous gobbledygook that the Federalist Society’s judges have strung together. The only hope for breaking the logjam is a state to kick the wobbly chair holding up the current framework of gun legislation.

Some state should make it mandatory to join the National Guard — or an auxiliary to the Guard that would place it outside of federal activation if one believes that’s a sticking point — to possess a firearm.

It’s a well-regulated militia. The state setting red flag regulations or restrictions on what kind of guns are appropriate for the militia’s tasks would be entirely reasonable within the context of maintaining a functional militia. The armed forces can kick people out for committing crimes or having a mental illness that renders them a danger to the mission — so could this militia.

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Those who want to own guns but who aren’t able to perform the martial tasks of a fighting force can be given administrative work. National Guard forces around the country need more people to deal with natural disasters and with an influx of bodies could see its mission expanded to other charitable causes. Whenever infrastructure becomes a project instead of a talking point, this new militia

It’s wild that this isn’t a more popular challenge to the current firearm regulation regime. It’s textual and originalist and gun supporters who object could, rightly, be called cowards for refusing to serve. Yet it’s only cropped up as a suggestion sporadically.

To any Democratic Party lawmaker sitting in a unified state government, draft this bill immediately. If Republicans can waste state resources on heartbeat bans just to go through the motions of ultimately futile constitutional litigation, why shouldn’t Democrats embrace litigation where they have the benefit of having the better of the textual argument? Especially with the NRA in potentially dire financial straits.

If John Roberts is correct that the greatest threat to his philosophical mission is the public perceiving the judiciary as merely partisan, force him to make more boldly partisan decisions. Letting him shield the Court by tossing reformist policies on technicalities and tenuous distinguishing logic is a losing game — make him say up is down and that text doesn’t mean text.

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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