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Antonin Scalia
credit: liveactionnews.org

It began in 2008 when the Supreme Court handed down its Heller decision. DC law all but made it impossible for anyone to obtain a permit to keep a gun in their home(?!), and also required the fortunate and well-connected few to render the weapons unusable for self-defense. This despite the fact Dick Heller was a security guard, allowed arms at work. Justice Antonin Scalia wrote the majority opinion:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues… Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on 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.26

There are two important points here: (1) The Court, as is usual, did not decide each possible issue arising from the Second Amendment. Particularly, it did not address the issue of concealed carry, and did not expressly extend the right to keep and bear arms outside the home and/or off one’s property. DC law essentially banned ownership within the home, and required weapons to be useless for self-defense in the home, and it is that upon with the Court focused. (2) The court affirmed the usual limitations on concealed carry common in most of the states that allow concealed carry, but in so doing, implied a right to concealed carry, though of uncertain scope. After all, such “longstanding prohibitions” would be unnecessary were there no right to keep and bear arms outside the home.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time…’

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. [skip]

This refers to the Heller’s enumeration that “the most preferred firearm in the nation, the handgun,” may not be banned.

We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.

“As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family…,” would fail constitutional muster. [skip]

Justice Scalia also noted the Court would inevitably revisit the Second Amendment to clarify the remaining issues:

Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible… But since this case represents this Court’s first in-depth examination of the Second Amendment , one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879) , our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.

Heller acknowledged the Second Amendment as a fundamental, unalienable right, based in the right to self-defense, and requiring the highest level of constitutional scrutiny. It established that the most common, popular and usual weapons—circa 2017, that’s the semiautomatic handgun—is the class of weapons—revolvers would obviously be included—which specifically may not be subject to an absolute ban. While the court did not rule on long guns, it’s not unreasonable to believe the AR-15 family of rifles, the most common, popular and usual rifles in America, would also enjoy constitutional protection, as would similar long guns. “Arms” are not limited, in colonial America and today, merely to handguns, or even to firearms.

While it does not expressly address carry outside the home, particularly concealed carry, it would be the height of illogic to argue citizens enjoy the means to exercise the right to self-defense only within their homes on within the confines of their property. The absurdity of such thinking is obvious. If one can afford to buy land to expand their property boundaries, they can concurrently expand their right to keep and bear arms, while their less well off neighbors cannot. How can a fundamental, unalienable right be so unequally applied? The idea that a man cannot protect his family or himself if he crosses his property boundary is absurd. Such a state of affairs would reduce a fundamental right to a mere privilege to be regulated at will by the states, a point understood by a three-judge panel of the 9th Circuit (of all circuits) in 2014, as Fox reports:

A divided federal appeals court on Thursday [02-14-14] struck down California’s concealed weapons rules, saying they violate the Second Amendment right to bear arms.

By a 2-1 vote, the three-judge panel of the 9th U.S. Circuit Court of Appeals said California was wrong to require applicants to show good cause to receive a permit to carry a concealed weapon.

‘The right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense,’ Judge Diarmuid O’Scannlain wrote for the majority.[skip]

The appeals court on Thursday reinstated a lawsuit filed in 2009 by Edward Peruta, who challenged San Diego County’s denial of a concealed weapons permit.

Of course, the full 9th Circuit, the most aggressively liberal in the nation, and the circuit most overturned by the Supreme Court, couldn’t let that stand, as Forbes reports:

On June 9, the U.S. Court of Appeals for the Ninth Circuit ruled 7 to 4 that the “there is no Second Amendment right for members of the general public to carry concealed firearms in public.”

To accomplish this they had to ignore the text of the Second Amendment to the U.S. Bill of Rights, misinterpret the Supreme Court decision District of Columbia v. Heller (2008) and cite English laws going back to 1299. [skip]

So this ruling effectively declares citizens don’t have a constitutional right to carry. They completely place this right at the discretion of the state—this means this court legally treats the “right to bear arms” as a “privilege,” as opposed to a constitutionally protected right. They’ve legally placed this right on the same level as the right to obtain a driver’s license.

This takes us to the heart of what this case was originally about. This case here is Peruta v. San Diego, which challenged the discretionary way some officials were granting citizens concealed-carry permits. [skip]

The next step for this case is an expected appeal to the U.S. Supreme Court. If the high court were to take this case, it could decide the future of gun rights in America. Clearly, the next president of the United States will have the chance to shape the court that might make this decision.

The Supreme Court, with Justice Gorsuch, and potentially another new, conservative justice this coming summer, may have that opportunity sooner than expected, as Fox reports: 

Now, if the Supreme Court decides to hear it, there may be a third major case in a decade: Peruta v. California.

At issue is the right to keep and bear arms outside the home. The Heller case specifically applies to situations within the home. Those who have petitioned the Supreme Court to hear the case are hoping the justices will see it as a logical extension of their earlier opinions.

The case arose when Edward Peruta and other gun owners who lived in or near San Diego, Calif., couldn’t get concealed-carry permits in their county. The Sheriff’s Department handles permit requests and requires ‘good cause’ to carry a gun outside of the home. This does not mean a generalized concern for safety, but something specific, such as fear of domestic violence or a regular need to move large amounts of money.

There were two separate lawsuits challenging the interpretation of ‘good cause,’ but the district courts found no violation of the Second Amendment.

Then, in 2014, a three-judge panel on the 9th Circuit Court of Appeals ruled 2-1 that the policy did indeed violate the right to bear arms for self-defense. The state, however, got a new hearing in front of 11 9th Circuit judges, who decided 7-4, the restrictions for concealed-carry permits were allowable.

The case has now been appealed to the Supreme Court and though the Justices have rescheduled its consideration several times, some experts feel the court is finally ready to hear Peruta.

‘I suspect they’re going to grant it,’ said John Eastman, former law dean at Chapman University and the director of the Center for Constitutional Jurisprudence.

Eastman told Fox News, ‘it’s percolating all across the country.

Such percolation may signal an ideal case for the Supreme Court. The Court doesn’t normally accept cases unless the lower courts are split, and unless there is a serious constitutional issue involved.

According to Eugene Volokh, professor of law at University of California at Los Angeles, this case is primed for the Supreme Court, as it deals with a basic constitutional right and ‘the lower courts are split on the issue.’

It would be a good time for the highest court to step in and settle the controversy. He also feels that while no one is sure how Gorsuch will vote, there is a ‘sense that he’s sympathetic to a broader view’ of the Second Amendment.

Keep in mind, gentle readers, that states may recognize more rights for their citizens than the Constitution, but they may not recognize fewer. If the Supreme Court does grant cert, the logic of Heller essentially demands recognition of a right to bear concealed weapons of some scope. But what if the court doesn’t recognize such a right?

For those states that currently recognize concealed carry in the most rational sense of the term, little will likely change, unless progressives should seize legislative control. Even then, in many of those states, most Democrats are wary of gun control, an issue that has proved capable of ending their political careers. However, in states like California and Illinois, such a decision would encourage all manner of restrictions, turning the law-abiding into instant felons, while doing nothing at all to combat crime. On the contrary, life would become much easier for criminals who don’t bother to obey any law in the first place.

The necessity of holding Mr. Trump’s feet to the flame on nominating only Constitutional conservatives to the high court is obvious. This is not to suggest political activism on the high court, but to demand that Supreme Court justices refrain from it, basing their decisions in the Constitution rather than preferred progressive policies. More obvious is the necessity of applying pressure, only more rigorously, to Congressional Republicans, who have often proved themselves squishy on such weighty issues.

Truly, we live in interesting times.

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