Quote of the day—Clayton E. Cramer

The evidence is clear that AW bans fail rational basis scrutiny because AWs are seldom criminally misused relative to more readily accessible weapons.  The disproportionate minimum sentences in California’s AWCA law relative to much more dangerous weapons suggests a panic reaction that is hardly rational.  The comments of journalists, elected officials, and gun control activists reveal bigotry that makes Colorado Amendment 2 seem pretty calm by comparison.  Even the courts are reduced to arguing that perceived benefit as opposed to actual benefit is a sufficient reason to uphold bans. There is no way to hold that AW bans which deny a fundamental right, as Heller determined the Second Amendment to protect, survives the “rational basis” standard of scrutiny.

Clayton E. Cramer
April 13, 2016
Assault Weapon Bans: Can They Survive Rational Basis Scrutiny?
[This is a well researched paper and brings to light some fascinating information. An example is the ruling upholding the Chicago AW ban. Cramer rewords a section of the ruling and explains as follows:

The same reasoning could have been applied to uphold the constitutional provision struck down in Romer: “Colorado voters may be irrational in their bigotry against homosexuals, but if it reduces their perceived risk of homosexuals being given free rein to molest children, that’s a substantial benefit.”  Clearly, when the courts argue that feeling safer is a legitimate reason to do something that makes no real difference in public safety, this is the definition of irrational.  It makes people feel better, but without any actual basis in fact.

Numerous other examples of irrationality abound. It’s great fun to go through the enumerations of the crazy talk of our opponents.—Joe]

13 thoughts on “Quote of the day—Clayton E. Cramer

  1. The problem with getting into discussions about “rational basis scrutiny” or “strict scrutiny” is the same as getting into a discussion about the safety benefits of gun ownership. None of those have anything to do with the plain words of the Constitution.

    All the various flavors of “scrutiny” are lawyerly trickery. The plain English translation of a “scrutiny” argument is: “we’re allowed to infringe on your human and Constitutional rights so long as we come up with a plausible sounding excuse”. And that is unconstitutional nonsense; “shall not be infringed” has a very plain and clear meaning, and no flavor of “scrutiny” is justified in view of those plain words.

    • The problem with not getting into those discussions is that the legal world we live in has those discussions, and acts upon those conclusions, without our input.

      • Who’s in charge of the conversation, and the conversation is based on what premises?

        So, we’re saying that if more people would get off their duffs and use so-called AWs in crimes, then AW bans would become perfectly rational and acceptable?

        When we say that a ban is irrational because AWs are rarely used in crime, then surely we’re also saying that banning guns that are used more in crimes would be “rational”.

        I think we’re trying to be too smart here by half.

        Numbers can change too. Basing your argument on numbers seems a bit dicey, given that your argument could in theory change overnight and begin working against you.

        Where’s the meticulous research and careful data analysis that leads to humans having certain unalienable rights? What statistical models give us equal rights?

        Here’s one result of research; 18 USC 242. It could be used against certain officials with or without their input.

        • I’m not sure what you mean by “in charge of the conversation”. The “conversation” will appear in one or more courts. If the defenders of the 2nd Amendment can conclusively show the proposed restriction cannot satisfy a “rational basis” test, as well as the plain and simple wording of the 2nd Amendment, it gives the judge(s) more “hooks to hang their hat(s) on”. Showing that the proposals fail “rational basis” is not an alternative of what we want, it’s in addition to. It is defeating our opponents on another path, currently, available to them.

        • I think the idea is to win today in order to set the stage for a better win tomorrow. Getting these tossed in court has proven to be a tough nut to crack so far. We got where we are today (in both the pro-freedom and anti-freedom) by building on incremental changes. As long as we keep an end goal in mind, and never attain satisfaction until it is reached, I’m ok with this.

        • And trying to change the numbers was how the Fast and Furious mess started.

  2. If courts claim something along the lines that “North Carolina and Mississippi voters may be irrational in their bigotry against transgender people, but if it reduces their perceived risk of predators being given free rein to molest children, that’s a substantial benefit.” then I’m going to be pissed.

    • Of course. It’s an absurd rational. That was Clayton’s point in regards to using that rational against gun owners.

  3. Pingback: SayUncle » Assault weapons and rational basis scrutiny

  4. The problem with the rationality test is that the way it’s used, it doesn’t mean what a normal person would think it means. The term “rational basis” has come to mean: Could any rational person anywhere possibly come up with a plausible reason that a law should be upheld, with no regard for evidence to the contrary. It’s such a low standard that it has become essentially a rubber stamp for all but the most blatantly abusive or corrupt legislation (depending mainly on which way the political wind is blowing that day).

    • Not so much “any rational person” but rather “a skilled lawyer” — people defined by Mencken as “men professionally trained in finding plausible excuses for dishonest and dishonorable acts”. And that is exactly what “rational basis scrutiny” is.

      • Wasn’t the “Rational Basis Test” invented because the Supreme Court wanted a result that “Strict Scrutiny,” which was what it termed its previous level of examination of the Constitution would not permit?
        Dang, now I have to look it up.

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