High-powered Washington DC attorneys David B. Rivkin Jr. and Andrew M. Grossman recently published an opinion piece in the Wall Street Journal Online titled:
Gun Control and the Constitution
The courts would no more allow government to undermine the Second Amendment than the First
The Supreme Court’s 2008 decision in Heller v. District of Columbia confirmed that the Second Amendment means what it says: ‘the right of the people to keep and bear arms shall not be infringed.’
After Heller and its follow-on case, McDonald v. Chicago, which applied the Second Amendment rights to the states, what government cannot do is deny the individual interest in self-defense. As a legal matter, that debate is settled.
Mr. Rivkin Jr and Mr. Grossman assert that Mr. Obama has apparently misunderstood the implications of the jurisprudence relating to the Second Amendment:
While the courts are still sorting out Heller‘s implications, politicians should not assume that they have a free hand to restrict private gun ownership. Decades of case law interpreting and applying the other provisions of the Bill of Rights show that there are hard-and-fast limits on gun control.
The general framework is straightforward and certainly well-known to those who have studied (let alone taught) constitutional law. The government cannot abridge constitutionally protected rights simply to make a symbolic point or because it feels that something must be done. Any measure must be justified by a legitimate government interest that is compelling or at least important. At the same time, any regulation must be ‘narrowly tailored’ to achieve that interest.
Mr. Obama, after all, is a “constitutional law professor.” Surely he understands the law, the Constitution, and respects the limits it places on the executive and legislative branches? Rivkin Jr. and Grossman continue:
The courts, however, are no more likely to allow government to undermine the Second Amendment than to undermine the First. A state cannot circumvent the right to a free press by requiring that an unfriendly newspaper carry millions in libel insurance or pay a thousand-dollar tax on barrels of ink—the real motive, in either case, would be transparent and the regulation struck down. How could the result be any different for the right to keep and bear arms?
How indeed? Consider, first, that Mr. Obama has never been a professor, an academic rank won only after many years of dedicated effort. Mr. Obama was nothing more than an adjunct lecturer, a man for whom a place was manufactured for political reasons. His supposed respect for the Constitution has been repeatedly demonstrated to be as real and ephemeral as unicorn horns and fairy dust.
But to return to the argument of the notable attorneys, it would seem that even if Mr. Obama is not leveling with the American people about his respect for the Second Amendment, the courts would never allow a fundamental freedom to be infringed. Fascinating, isn’t it, that two such genuinely experienced and esteemed lawyers can so easily deceive themselves? Not only could the courts allow widespread infringement on the Second Amendment, even a casual reading of the minority opinions in the Heller and McDonald cases, unmistakably indicates that the Second Amendment hangs on the current 5/4 balance of the Supreme Court. My recent Gun Values Board article discusses the arguments in those cases in more detail. Lose a single judge willing to honor precedent and decide cases based on the law rather than Progressive social preferences, and the Second Amendment would, at the very least, become a right with no practical application in the lives of citizens.
For insight into the anti-Second Amendment orthodoxy of the Progressive wing of the Supreme Court, one need only review my 2010 PJ Media article on Justice Stephen Breyer. An excerpt:
For Justice Breyer a complete ban on handguns in D.C is completely acceptable and reflective of the true values embodied by the Constitution. ‘We’re acting as judges. If we’re going to decide everything on the basis of history — by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes? Handguns? Are you a sportsman? Do you like to shoot pistols at targets? Well get on the subway and go to Maryland. There is no problem, I don’t think, for anyone who really wants to have a gun.
The current issues in the gun control debate were well illuminated by the National Rifle Association in a recent letter to the Congress. The executive summary of the letter is as authoritative as it is convincing to those willing to accept fact and logic:
NRA and NICS: The National Rifle Association supported the establishment of the National Criminal Instant Background Check System (NICS), and we support it to this day. At its creation, we advocated that NICS checks be accurate; fair; and truly instant. The reason for this is that 99% of those who go through NICS checks are law-abiding citizens, who are simply trying to exercise their fundamental, individual Right to Keep and Bear Arms.
Dealers : Since 1986, those engaged in the business of selling firearms for livelihood and profit have been required to have a Federal Firearms License (FFL). All retail sales of firearms currently require a NICS check, no matter where they occur. [Ed.: In other words, there is no ‘gun show loophole.’]
Private Sales : Regarding the issue of private firearms sales, it is important to note that since 1968, it has been a federal felony for any private person to sell, trade, give, lend, rent or transfer a gun to a person he either knows or reasonably should know is not legally allowed to purchase or possess a firearm.
Mental Health Records and NICS : According to a recent General Accounting Office study, as of 2011 23 states and the District of Columbia submitted less than 100 mental health records to NICS; 17 states submitted less than ten mental health records to NICS; and four states submitted no mental health records to NICS.
Gun Shows : A common misrepresentation is that criminals obtain firearms through sales at gun shows.
A 1997 Bureau of Justice Statistics survey of state prison inmates who had used or possessed firearms in the course of their crimes found that 79 percent acquired their firearms from ‘street/illegal sources’ or ‘friends or family.’ Only 1.7 percent obtained firearms from anyone (dealer or non-dealer) at a gun show or flea market.
Prosecutions : In 2010, the FBI denied 72,659 NICS checks out of a total of 14,409,616. But only 62 of these cases were actually prosecuted, and only 13 resulted in a conviction.
‘Universal Background Checks’ : While the term ‘universal background checks’ may sound reasonable on its face, the details of what such a system would entail reveal something quite different. A mandate for truly ‘universal’ background checks would require every transfer, sale, purchase, trade, gift, rental, or loan of a firearm between all private individuals to be pre-approved by the federal government. In other words, it would criminalize all private firearms transfers, even between family members or friends who have known each other all of their lives.
According to a January 2013 report from the U.S. Department of Justice’s National Institute of Justice, the effectiveness of ‘universal background checks’ depends on requiring gun registration. In other words, the only way that the government could fully enforce such a requirement would be to mandate the registration of all firearms in private possession – a requirement that has been prohibited by federal law since 1986.
All of this would be prime evidence in any Second Amendment case coming before the courts. It is tempting to accept our lawyer’s argument. The rational case seems overwhelming. It is even more so when one considers additional information from that National Institute of Justice memo. Consider these quotations from that memo:
*Gun buybacks are ineffective as generally implemented.
*In order to have an impact, large capacity magazine regulation needs to sharply curtail their availability to include restrictions on importation, manufacture, sale, and possession. An exemption for previously owned magazines would nearly eliminate any impact. The program would need to be coupled with an extensive buyback of existing large capacity magazines. When an exemption the impact of the restrictions would only be felt when the magazines degrade or when they no longer are compatible with guns in circulation. This would take decades to realize.
*On so-called ‘universal background checks,” the memo notes that effectiveness of such checks would require gun registration.
…informal transfers dominate the crime gun market. A perfect universal backgfound check system can address the gun shows and might deter many unregulated private sellers. However, this does not address the largest sources (straw purchasers and theft), which would most likely become larger if background checks at gun shows and private sellers were addressed. The secondary market is the primary source of crime guns.
*Assault weapons are not a major contributor to gun crime. The existing stock of assault weapons is large, undercutting the effectiveness of bans with exemptions…a complete elimination of assault weapons would not have a large impact on gun homicides.
*Since assault weapons are not a major contributor to US gun homicide an the existing stock of guns is large, an assault weapon ban is unlikely to have an impact on gun violence. If coupled with a gun buyback and no exemptions then it could be effective.
*[Requiring ‘smart’ guns is] unlikely to affect gun crime.
In all of this, the primary thread of logic is clear: the anti-gun proposals currently being pushed are not only ineffective in that they cannot and will not reduce crime and fatalities, they are plainly unconstitutional. However, this does not stop their congressional proponents, and the Federal Government, from continuing to pursue them, primarily by means that would not only violate existing federal law, but make the plainly unconstitutional glaringly and insanely unconstitutional. And this is where our learned attorneys are mistaken.
There is no question that Mr. Obama is packing the lower courts with Progressive ideologues. Should he have the chance to replace a single “conservative” Supreme Court justice (translation: a justice who decides cases based on the Constitution and precedence)–and the currently feckless Senatorial Republicans would surely do little or nothing to stop such an appointment–there is no guarantee the Supreme Court would decide future Second Amendment cases as Mr. Rivkin Jr. and Mr. Grossman assume. In fact, their writings in the two landmark Second Amendment cases suggest just the opposite. The writings and actions of the Obama Administration also support this rather pessimistic view of the fidelity of such a court to the Constitution and to settled standards employed in the decision making process.
“How could the result be any different for the right to keep and bear arms?” Simple, Mr. Rivkin Jr and Mr. Grossman. It can and will be different on the day, despite all of the evidence, despite precedence, despite reason and despite the Constitution, a narrow majority of justices who simply do not believe in a right to keep and bear arms hold sway on the Supreme Court.
Coming to a nation near you, soon?