Eternal vigilance is the price of liberty.
Attributed to Thomas Jefferson
The Second Amendment is much in the news, circa December, 2019, as it usually is. The FBI just posted a record number of background checks, indicating that Democrat presidential candidate’s hostility to the Second Amendment and the law-abiding—they’re explicitly saying they intend to seize lawfully owned guns–has caused Americans to buy more guns in the anticipation of Democrats taking power and banning them. The same thing was true during the Obama years, and when Hillary Clinton was running for president and promising to attack the Second Amendment every single day. Americans are not fools.
A part of the current debate involves Democrats, and others, labeling anyone concerned about the fate of the Second Amendment rabble– rousing alarmists. “The Second Amendment will never be overturned,” they say, “you’re just trying to scare people!”There is, of course, a substantial difference between fear-mongering and thoughtful analysis based on objective evidence. To better understand the issues, and where the nation stands circa December 2019, let us, briefly, consider the history of the Second Amendment.
Prior to 2008 and the Heller decision, the only significant Supreme Court ruling on the Second Amendment was the Miller case (1939), which did not remotely deal with the meaning of the Amendment. The primary understanding to be gained from that case was that sawed off shotguns were illegal because they were not particularly useful in a military context. By that reading, fully automatic weapons would logically be among the most constitutionally protected.
In Heller, the majority of the Supreme Court held that the Second Amendment does indeed speak to a fundamental, unalienable, individual right. It also observed that cases involving the Second Amendment, like the rest, deserved strict scrutiny, the highest level of judicial review. An excerpt from that majority opinion:
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.
In other words, the keeping and bearing of arms is not dependent on membership in a militia, or the usefulness of a given class of arms in military service. Another excerpt, addressing the Washington DC law then in effect:
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.
Justice Stephen Breyer was and is representative of the minority—their dissenting opinion may be found here—that grudgingly admitted the Second Amendment recognizes an individual right, but believe that does not, in any way, limit any restriction on that right government might concoct. The Second Amendment, in other words, exists, but has no application in the lives of Americans, unless government, and particularly a D/S/C government, allows it.
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.
One can reasonably argue that the Court should have defined issues such as concealed and open carry, which were also at issue in the case, but they chose otherwise, giving many cities and states the opportunity for great mischief. Heller was followed in 2010 by the McDonald decision. McDonald applied the Second Amendment and Heller to the states. The dissenting opinion in McDonald closely followed the anti-liberty holdings of their Heller dissent.
Heller established that the most common, popular and usual weapons—circa 2019, the semiautomatic handgun—may not be subject to an absolute ban. Revolvers, secondary in popularity to semiautos, would surely also be protected. 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 Heller did 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 or within the confines of their property. 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. Self-defense must occur wherever one finds the need. 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 reported:
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. That decision was later overturned by the entire 9th Circuit, and the Supreme Court did not grant cert to hear the appeal.
The Supreme Court has not granted cert on a Second Amendment case until now, as Reason.com reports:
Yesterday [12-02-19], the Supreme Court heard oral argument in NYS Rifle and Pistol Association v. City of New York. Certiorari was granted in February 2019. After the grant, New York City repealed the challenged provisions of the premise license law. Subsequently, New York State enacted a law that made it impossible for New York City to reenact the challenged provisions.
The New York City law at question related to restrictions on carrying a firearm outside the home. For virtually all NYC residents, firearms can only be owned with a “premises” license. They could only transport their firearms outside the home, unloaded, in a locked container– rendering them useless for self-defense—to one of a few ranges in NYC. When the Supreme Court granted cert, NYC hastily repealed the law, obviously afraid the Court would more definitively rule on the limits of restrictions on the right to keep and bear arms. In NYC and similar Democrat-ruled cities, concealed carry is reserved only for the wealthy, powerful and politically connected. Criminals, of course, don’t bother to obey the law, and so are armed as they please where they please. The Court refused to dismiss the case.
Congressional Democrats responded to the Court’s grant of cert with crude threats, as National Review reports:
I just finished reading of the most astonishing legal briefs I’ve ever read. It is easily the most malicious Supreme Court brief I’ve ever seen. And it comes not from an angry or unhinged private citizen, but from five Democratic members of the United States Senate. Without any foundation, they directly attack the integrity of the five Republican appointees and conclude with a threat to take political action against the Court if it doesn’t rule the way they demand.
The brief is so outside legal norms that, had I drafted it as a member of the Supreme Court bar, I’d be concerned about facing legal sanction for recklessly impugning the integrity of the Court.
Here’s the background. Senators Sheldon Whitehouse, Mazie Hirono, Richard Blumenthal, Richard Durbin, and Kirsten Gillibrand filed their short brief in a case called New York State Rifle and Pistol Association v. the City of New York, the first Second Amendment case the Supreme Court has taken in nearly a decade.
If that sounds momentous, don’t be so sure. At issue is an extremely bizarre New York City law that banned the transport of a locked, unloaded licensed handgun outside the home unless the gun owner is traveling to one of only seven shooting ranges in the city. While the odds were remote that the Court would issue a sweeping Second Amendment ruling in a case involving a truly niche New York City law, it seemed likely that SCOTUS would strike down a regulation so strict that it prevented a person from taking his gun to a second home or even on a vacation to a jurisdiction that permitted him to arm himself.
Here’s where the threat comes in:
The brief ends with this ominous warning:
The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.
Translation: Nice nine-person Supreme Court you have there. It would be a shame if anything happened to it.
And what would happen to it? What is the restructuring the Democrats threaten? Not only Democrat presidential candidates, but congressional Democrats, and their propaganda arm, the media, have been pushing various court packing schemes. Allied with this tactic is doing away with the Electoral College, an issue I’ll address tomorrow. The point of both is to ensure Democrats, and only Democrats can be elected to the presidency in the future, and once elected, the population can be disarmed to ensure permanent Democrat rule.
But the Supreme Court would never allow that! The Congress wouldn’t allow it! The Constitution is what the Supreme Court says it is. The current Supreme Court says the Second Amendment recognizes an individual, unalienable right to keep and bear arms. That’s why when Ruth Bader Ginsberg leaves the Court, there will be a battle over whoever Mr. Trump nominates that will make the Kavanaugh confirmation hearing look like an exquisitely polite tea party. D/S/Cs see the Supreme Court as a super legislature beholden only to them. The Supreme Court’s only legitimate place in America is giving D/S/Cs whatever policies and laws they can’t get through the legitimate legislative process.
Therefore, if the majority of the Court foolishly refuses to give D/S/Cs whatever they want, if it stubbornly insists on rendering decisions based on the law and the Constitution, that majority must be changed to align with D/S/C desires, thus, court packing. Six of nine justices are true to the Constitution? Add enough that aren’t to change the majority.
D/S/Cs aren’t kidding about wanting to pack the Court. These are people who, while cynically claiming to be its defenders, do not recognize the Constitution if it gets in the way of what they want. We’ve already had a President who ruled by pen and phone, who said he didn’t have authority to violate the Constitution and did it anyway, because he couldn’t wait for the Congress to act–do what he wanted when he wanted.
Those pushing court packing, and other fundamental changes to our system of government, don’t intend to wait either. Thomas Jefferson was right. We keep our republic only through eternal vigilance. The founders knew very well the most dangerous threats to American constitutionalism come from within, and history has, again and again, proved them right.
The Second Amendment, all our liberties, are always in jeopardy to at least some degree. The first three years of the Trump administration have proved to be a lull in these threats, at least from the Presidency, but D/S/Cs have made their intentions more than clear, and when they once again take the White House, they intend to greatly surpass Barack Obama in usurpation of the Constitution. The Second Amendment will be among the first casualties. That’s fact, as eloquently and constantly expressed by D/S/Cs. Those that love the Constitution and Liberty have just cause to fear liberty’s loss.