On Thursday, the conservative United States Court of Appeals for the Fifth Circuit, in an opinion joined by two George W. Bush appointees, upheld a law banning federally licensed firearms dealers from selling guns to people under the age of 21. The plaintiffs in this case included the National Rifle Association.

In rejecting the NRA’s lawsuit, the court explained that restrictions on gun sales to young people are consistent with a legal tradition stretching all the way back to the framers:

We have summarized considerable evidence that burdening the conduct at issue—the ability of 18-to-20-year-olds to purchase handguns from FFLs—is consistent with a longstanding, historical tradition, which suggests that the conduct at issue falls outside the Second Amendment’s protection. At a high level of generality, the present ban is consistent with a longstanding tradition of targeting select groups’ ability to access and to use arms for the sake of public safety. More specifically, the present ban appears consistent with a longstanding tradition of age and safety-based restrictions on the ability to access arms. In conformity with founding-era thinking, and in conformity with the views of various 19th-century legislators and courts, Congress restricted the ability of minors under 21 to purchase handguns because Congress found that they tend to be relatively immature and that denying them easy access to handguns would deter violent crime. . . .

To be sure, we are unable to divine the Founders’ specific views on whether 18-to-20-year-olds had a stronger claim than 17-year-olds to the Second Amendment guarantee. The Founders may not even have shared a collective view on such a subtle and fine-grained distinction. The important point is that
there is considerable historical evidence of age and safety-based restrictions on the ability to access arms. Modern restrictions on the ability of persons under 21 to purchase handguns—and the ability of persons under 18 to possess handguns—seem, to us, to be firmly historically rooted.

It is possible that the NRA will attempt to appeal this decision to the full Fifth Circuit, which includes many of the most severely conservative judges in the country. The Fifth Circuit ordered a cheerleader to pay sanctions after she sued the school district that required her to cheer for her alleged rapist. Several of its judges once claimed that a death row defendant whose lawyer slept through much of his trial was not denied his constitutional right to counsel. Two Fifth Circuit judges, Jerry Smith and Eugene Davis, ruled in favor of the oil industry in a major drilling moratorium case despite the fact that they both attended expense-paid “junkets for judges” sponsored by an oil-industry funded organization. Another Fifth Circuit judge, Edith Clement, serves on the board of this organization, despite an opinion from the federal judiciary’s ethics committee saying that she violated her ethical obligations by doing so.

Nevertheless, the presence of two Bush appointees on this panel — one of whom has her own record of severe conservatism — suggests that the NRA is unlikely to carry the day.

The 1984 film Red Dawn is a classic in the genre of paranoid Cold War guns fantasy, where a group of armed high school students fend off an invading Soviet army and eventually “g[i]ve up their lives… so that this nation shall not perish from the earth.” Rep. Steve King (R-IA), however, seems to believe it is a manual for federal firearms policy:

King said during a debate last week in Orange City that the original purpose of the Second Amendment was not to assure hunting rights or allow people to provide for self-protection. The purpose was “to guard against tyranny because our Founding Fathers understood that if we did not have an armed populace, an armed tyrant could take over America,” King said.

When asked whether such a threat was legitimate in 2012, he said, “We don’t have that threat now because we have an armed populace, and we don’t have to worry about that because of an armed populace.” . . .

When asked if the “armed tyrant” was an outside threat or even the U.S. government, King said, “I don’t see it as our own federal government. I wouldn’t rule it out down the line in a generation or two. I wouldn’t say that’s not part of it. I don’t see it today, and I don’t anticipate that that’s the case.”

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Setting aside King’s suggestion that invading armies have thus far steered clear of American soil because they fear reprisal from a ragtag band of civilian Wolverines, there are potentially serious policy implications to King’s interpretation of the Second Amendment. A foreign army would certainly deploy the tools of modern warfare if it chose to capture American soil, so a misfit band of patriotic teenagers would need to arm themselves with similar weapons in order to provide a meaningful deterrent to such forces.

Needless to say, this is not what the Second Amendment provides. As conservative Justice Scalia explained in District of Columbia v. Heller, “dangerous and unusual weapons” are not protected by the Constitution. More recently, a federal appeals court explained in an opinion by a George W. Bush-appointed judge that “[s]hort of bombs, missiles, and biochemical agents, we can conceive of few weapons that are more dangerous than machine guns,” and thus all of these weapons can be banned under the Second Amendment.

In an opinion by George W. Bush appointed Judge Milan Smith, the United States Court of Appeals for the Ninth Circuit rejected a criminal defendant’s claim that he has a Second Amendment right to own a machine gun:

In Heller, the Supreme Court struck down the District of Columbia’s ban on handgun possession, concluding that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” However, the Court stated that the Second Amendment only protects the right to own certain weapons, and that it “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” The Court also concluded that the “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’” limits the right to keep and carry arms.

Heller did not specify the types of weapons that qualify as “dangerous and unusual,” but the Court stated that it would be “startling” for the Second Amendment to protect machine guns. Since Heller was decided, every circuit court to address the issue has held that there is no Second Amendment right to possess a machine gun.

We agree with the reasoning of our sister circuits that machine guns are “dangerous and unusual weapons” that are not protected by the Second Amendment. An object is “dangerous” when it is “likely to cause serious bodily harm.” Congress defines “machinegun” as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” The machine gun was first widely used during World War I, where it “demonstrated its murderously effective firepower over and over again.” A modern machine gun can fire more than 1,000 rounds per minute, allowing a shooter to kill dozens of people within a matter of seconds. Short of bombs, missiles, and biochemical agents, we can conceive of few weapons that are more dangerous than machine guns.

As a matter of law, this was an easy case. The Ninth Circuit now joins the Third, Sixth, and Eighth Circuits which have all rejected claims that the Second Amendment guarantees a right to own machine guns. Nevertheless, it is an important reminder that the Supreme Court’s Second Amendment cases still permit robust gun regulation. As conservative Justice Scalia explained in his Heller opinion, the Second Amendment not only does not apply to “dangerous and unusual” weapons, it also does not apply to “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

In an interview concerning the tragic shooting on Texas A&M campus on Monday, Gov. Rick Perry (R-TX) took a surprisingly moderate position on gun regulation. Although Perry rejected the suggestion that the shooting — the third high profile shooting in just one month — justified gun regulation in Texas, he also indicated that each state should be able to decide on its own whether or not to ban guns:

PERRY: When it gets back to this issue of taking guns away from law abiding citizens and somehow know this will make our country safer, I don’t agree with that. I think most people in Texas don’t agree with that, and that is a state by state issue frankly that should be decided in the states and not again a rush to Washington, D.C. to centralize the decision making, and them to decide what is in the best interest for the citizens and the people of Florida and Texas. That’s for the people of these states to decide.

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Perry’s position, that each state should get to decide whether to “tak[e] guns away” from its citizens places him well to the left of the Supreme Court and the nation’s largest gun lobby. In McDonald v. Chicago, the five conservative justices held that the Second Amendment applies equally to the federal government and to state governments, so an absolute ban on guns would not be constitutional if enacted at the state level (although bans on “dangerous and unusual” weapons would remain valid). The National Rifle Association was the plaintiff in a sister case to McDonald.

Allowing each state to set its own gun policy, the position that Perry seems to embrace today, closely tracks the views expressed by dissenting Justices Stevens, Ginsburg, Breyer and Sotomayor in McDonald.

This morning on Fox News Sunday, Justice Antonin Scalia reiterated just how extremely his Constitutional originalism can be applied. Referring to the recent shooting in Aurora, CO, host Chris Wallace asked the Supreme Court Justice about gun control, and whether the Second Amendment allows for any limitations to gun rights. Scalia admitted there could be, such as “frighting” (carrying a big ax just to scare people), but they would still have to be determined with an 18th-Century perspective in mind. According to his originalism, if a weapon can be hand-held, though, it probably still falls under the right to “bear arms”:

WALLACE: What about… a weapon that can fire a hundred shots in a minute?

SCALIA: We’ll see. Obviously the Amendment does not apply to arms that cannot be hand-carried — it’s to keep and “bear,” so it doesn’t apply to cannons — but I suppose here are hand-held rocket launchers that can bring down airplanes, that will have to be decided.

WALLACE: How do you decide that if you’re a textualist?

SCALIA: Very carefully.

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Scalia’s across-the-board defense of weapon-carrying laws is not new, having been at the heart of his majority opinion in District of Columbia v. Heller, which protected an individual’s right to possess firearms. However, his nonchalant suggestion that private citizens could legally carry rocket launchers so long as they’re “hand-held” suggests just how willing he is to protect an armed nation.

Such originalism is a dangerous distortion of 21st-Century reality. There is no conceivable way to apply the Founding Fathers’ understanding of a  ”well-regulated militia” armed with slow-to-load, hard-to-aim muskets to today’s weapon technology. Arguably, the full extent of alleged gunman James Holmes’ munitions could have easily decimated an entire brigade of musketeers before they’d even loaded their first ball.

For at least the last two years, far right groups have opposed an imaginary treaty which, in the words of the John Birch Society, would “cede control of private Americans’ small arms ownership and use to the United Nations.” This treaty does not exist. Snopes described reports of such a treaty as “scarelore.” ThinkProgress debunked Sen. Rand Paul’s (R-KY) attempt to fundraise off this imaginary treaty more than a year ago. PolitiFact rejected claims that any UN treaty will limit Second Amendment rights as recently as last week.

So, of course, two GOP Congressmen have introduced legislation to block this imaginary treaty:

“The Second Amendment is an individual constitutional right and we must never allow that right to be trampled on by an international treaty,” Rep. Ben Quayle (R-Ariz.) said Monday. “This U.N. treaty is a direct threat to American sovereignty and the constitutional rights of all Americans. . . . Quayle introduced the Second Amendment Sovereignty Act, H.R. 5846, to counter the U.N.’s Arms Trade Treaty, which he and co-sponsor Rep. Denny Rehberg (R-Mont.) said could limit the rights U.S. citizens have under the Second Amendment. Quayle said the treaty is expected to be concluded sometime this year.

For the record, even if the United Nations wanted to propose a treaty restricting Americans’ Second Amendment rights, and even if President Obama was absolutely determined to support such a treaty, the treaty would be void for violating the Constitution. As Justice Hugo Black once explained, the Supreme Court has long “recognized the supremacy of the Constitution over a treaty.”