a conservative majority, Amy Coney Barrett, assault weapons, D/S/Cs, gun bans, Harris/Biden, Heller, McDonald, Ruth Bader Ginsburg, second amendment, second-class rights, settled law, the Supreme Court
With Amy Coney Barrett’s nomination for the Supreme Court, and her likely confirmation after what will certainly be a cruel and ugly series of attacks that will make the Kavanaugh debacle look like a Girl Scout cookie sale, some are suggesting the Second Amendment will finally, for as much as a generation, be safe. Don’t be so sure.
Back in February of 2013, in The Courts Won’t Let The Government Destroy the Second Amendment…right? I wrote:
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.’
The article examined reality during the second Obama term. As you might imagine, I concluded the courts will indeed allow government to damage, even destroy, the Second Amendment. This is particularly so because as the Congress has, more and more, abdicated its legislative role, allowing the administrative state unprecedented powers, they have also turned the courts into super legislatures used to give, by judicial fiat, Democrats/Socialists/Communists what they cannot get through the legitimate legislative process. Republicans are also complicit, but surely not to the degree of D/S/Cs.
While Heller and McDonald are “settled law” in a technical sense, the Supreme Court has scrupulously avoided granting cert to a substantial number of significant cases that would allow them to define, in a very practical sense, the issues Heller did not touch. These are issues such as what limitations, if any, the government can impose on concealed carry. Can the government continue to treat the ownership and use of suppressors—very much a public health issue—as they do machineguns? Are bans on entire classes of firearms—so-called “assault weapons”–constitutional? Are magazine limit bans constitutional? Are “Red Flag” laws constitutional, particularly if they have inadequate due process provisions? Should American’s fundamental rights be taken away for misdemeanor convictions?
Ignoring these cases, refusing to rule for liberty, means millions of Americans continue to be deprived of essential liberties. Surely, they can move out of despotic cities and states–we still possess freedom of movement–but it’s not always easy for people to uproot themselves, even if it means fully vindicating their unalienable rights.
These, and other issues, remain to be resolved, and the governments of D/S/C-ruled cities and states, when they’re not focused on defunding their police agencies, take advantage of these ambiguities to harass law-abiding gun owners, and citizens who might want to become gun owners, as much as possible. Is an unalienable, express constitutional right, even one technically recognized by the Supreme Court, an actual right if citizens have to wage expensive, lengthy legal battles to secure incremental portions of it? Consider that several of the current justices have decried the Court’s unwillingness to further define the application of the Second Amendment in the lives of Americans, rightly observing the Court is treating the Second Amendment like a “second-class right.” Of what use is a right on paper if it has no real application in the lives of Americans?
Ah, but with the confirmation of Amy Barrett, the court will have a 6-3 “conservative” majority. Let us keep in mind Republicans usually fail to explain to the public what this should mean: a “conservative” justice is one whose decisions are based entirely on the Constitution and the law, never on their personal, political preferences. They are originalist and textualists. They believe the words of the Constitution are clear and easily understandable, and do not change, absent a constitutional amendment. Even if a given justice thinks a law before the court well intentioned, perhaps even noble, if it is not constitutional, that’s the end of that argument. What Republicans should be saying, and do not, is there should never be a single justice on the Court dedicated, as Ruth Bader Ginsburg was, to “fighting for equality,” or feminism, or diversity, or free Crispy Crème donuts in the mornings, or universal health care, or climate change. If they want to fight those fights, they should run for Congress.
Chief Justice John Roberts has, as is all too common with supposed “conservative” Supreme Court Justices, become a disappointment to Americans that expect justices to uphold the Constitution. No one expects anything of “liberal” justices, other than ignoring or warping the Constitution, and ruling in favor of D/S/C policies. The 6-3 majority will, supposedly, nullify Robert’s power to rule America with a single vote.
In a nation under the rule of law, this might be so, but more and more, America is a divided nation, with Blue states under the rule of social justice, and red states under some versions of the rule of law. It’s likely, under a second Trump Administration, with Amy Coney Barrett on the Court, the scope of the Second Amendment would be further expanded in favor of individual liberty, but the law grinds slowly indeed, and four years is a very short time in the life of a nation, particularly when the entire D/S/C apparatus—Congress, the deep state, the media, academia, professional sports, etc.—is daily focused on destroying the president and seizing, forever, ultimate political power.
It is now entirely possible–even likely–if Judge Barrett is confirmed, D/S/Cs will proclaim the Supreme Court illegitimate, just as they will surely proclaim a second Trump term illegitimate, and ignore, to varying degrees, any decision of the court with which they disagree. That would be any decision that supports the Constitution, and which in any way diminishes their power.
Even if a 6-3 “conservative” majority takes up substantial Second Amendment cases, and resolves them in favor of individual liberty, their effect would almost surely be short lived.
We like to think the Supreme Court is beyond politics, but clearly, that’s not so. If it were, how is it a supposed 5/4 conservative majority, in the 12+ years since Heller, has refused to further expand the Second Amendment it finally, more than 200 years after the founding, acknowledged? Is it cowardice? Was that supposed majority never really there? It takes only four justices to grant cert—for a case to be heard—yet there haven’t been that many willing to deal with the Second Amendment in more than a decade? Could that be because justices dedicated to the Constitution know some supposedly “conservative” justices are unreliable and might do damage to Heller?
A theoretical 6-3 majority would almost surely be an actual 5-4 majority—Roberts cannot be counted on—but when D/S/Cs once again take power, and inevitably, they will, the Constitution will become a dead letter. Court packing might become essentially meaningless if a substantial portion of the states decided to honor only the decisions they like. Red states would honor only those decisions that support D/S/C policy and the expansion and maintenance of ultimate governmental power. Blue states would honor the only those decisions that reflected the Constitution. The Second Amendment will exist, but only as fading ink on yellowing paper. It will have application in the lives of Americans only in those states and cities that recognize the Constitution and the authority of the Supreme Court in a legitimate constitutional scheme.
Remember that the States may allot more rights to their citizens than the Constitution provides, but currently, they may not allot fewer rights. Under a Supreme Court whose legitimacy is recognized by only a portion of the states, this principle too would be defenestrated.
If Judge Barrett is confirmed, if President Trump is reelected, and if Republicans hold the Senate—the House would be icing on a tenuous cake—the Second Amendment might be relatively safe for four years. The individual rights of Americans under that Amendment might be somewhat clarified and expanded. But no one should imagine any of our liberties is ever entirely safe. As I’ve recently written, a Harris/Biden administration would have as one of its central policies the demolition of the Second Amendment and the subjugation of a disarmed populace. Even if Harris/Biden do not take power in 2020, whatever combination of D/S/Cs eventually follows them will surely not evolve to greater appreciation of the Constitution and less power for the state.
D/S/Cs have made it more than clear that when they once again seize power, they are going to make good on their threat to “fundamentally transform America.” We can be absolutely certain that transformation will, first and foremost, involve the disarming of the law-abiding. A D/S/C utopia just isn’t possible if individual Americans possess the right and means to reject it.
By all means, the confirmation of Judge Barrett will be a good thing for liberty, but we should never imagine that judges on any court will protect liberty. The love of liberty must ever burn brightly in the hearts and minds of patriotic Americans. When that fire goes out…