The 2nd Amendment-What The Supreme Court Got Wrong

Estimated Reading Time: 7 minutes

DC v. Heller

Happy Heller Day! On June 26, 2008, the Supreme Court, in a 5-4 decision, ruled that the rights to keep and bear arms are individual rights, not dependent on service in a militia – which we all knew to begin with.

Heller Day is a day for celebration, finally affirming the rights of the People, after decades of having to listen to nonsense about a “collective” right. Unfortunately, they got a few things wrong, so that we still have to deal with anti-rights twits who know in their hearts the decision was right, but just don’t like it, because guns are icky and stuff.

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The Court’s biggest mistake was to include, gratuitously, The Paragraph.

“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.”

The hoplophobes have been beating us over the head with The Paragraph ever since. “No Constituional right is absolute!” (Well, except for the right to get an abortion, which is right there in the Bill of Rights, somewhere.)

Why are laws assumed to be constitutional because they are “longstanding”? Slavery was longstanding. “Separate but equal” schools and facilities were longstanding. Anti-miscegenation laws were longstanding. Internment of Japanese-Americans was longstanding. Prohibitions on divorce, contraception, and abortion were longstanding. Prohibition of homosexuality and homosexual marriage were longstanding. How much weight should “longstanding” have in the analysis of constitutionality? Why should it have any weight at all?

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What about felons? Martha Stewart is a convicted felon. Do we sleep more soundly knowing she is prohibited from owning a gun? OK, but what about violent felons? Suppose there is a felon convicted of murder with a hammer, knife, or machete. Upon completion of her sentence, does it make sense to prohibit her from owning a gun, but not a hammer, knife, or machete?

Who determines which places are “sensitive,” and why is such a determination presumed to be constitutional? The Second Amendment can be neutered simply by declaring every place outside a person’s house to be “sensitive.” Shopping mall? Grocery store? Football game? Airport? Church? Synagogue? Who gets to decide which places are so sensitive that you must forfeit your right to defend yourself against violent attack – and how does disarming potential victims make such places safer?

And what is this about restrictions on commercial sales? Don’t the right to own arms and the right to carry arms imply the right to buy arms? Commercial restrictions are not all that “longstanding.” There was no license required to sell guns until the Gun Control Act of 1968, a mere 56 years ago – hardly ancient history. There was no such thing as a background check until 1989. How did the nation survive for the first 213 years without background checks? And as Dr. Phil says, “How’s that working for you?” Both those restraints on commerce have been failures, depriving millions of their rights, with no measurable effect on public safety. It’s time to abolish those laws, not expand them, and certainly not to revere them for being “longstanding.”

Also in Heller, because the law being challenged involved handguns, the Court made much of the right of self-defense being central to the RKBA. In fact, self-defense is one of the important but ancillary purposes for keeping and bearing arms. The central reason is to enable the People to resist tyranny. When a government sends troops to round up fugitive slaves, or Mormons, or Jews, or homosexuals, or MAGA extremists, or communists, or counter-revolutionaries, or infidels, the People have the right to resist, with arms. That’s what’s at the core of the Second Amendment.

“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” Joseph Story, Commentaries on the Constitution.

McDonald v. City of Chicago

Because the Heller case invalidated a handgun prohibition law in Washington, DC, the question was still open as to whether the Second Amendment was incorporated under the 14th Amendment, and therefore applicable to the states as well as to the federal district. In McDonald, the Court affirmed that, indeed, the states too must respect the Second Amendment. Good.

But that was an opportunity for the Court to say, “Although nothing in Heller should be taken to cast doubt on those longstanding restrictions, neither should anything be taken to indicate approval of those restrictions. Those are simply matters which the Court has not yet addressed.” In the words of John Belushi, “But NOooo.” Instead, Alito doubled down, actually quoting The Paragraph, which the hoplophobes have repeatedly and gleefully construed as an endorsement of those infringements.

NY State Rifle & Pistol Ass’n v. Bruen

New York had, on paper at least, a way to get a concealed carry permit, provided the applicant jumped through a few hoops. In practice, the hoops were so cumbersome, and so expensive, that nobody could get a permit unless famous or politically connected, or money changed hands under the table. One of the hoops was that the applicant had to provide a good reason. If the authorities determined that the reason was good enough, then the permit would be issued. The reason was never good enough. (The very concept of permits originated with Jim Crow laws. A person of “good character” could get a permit. The local sheriff would determine if a person was of good character. If the applicant had black skin, the sheriff (invariably a Klan member), then the character was not good enough.)

The members of the Rifle & Pistol Association argued, “Nobody should have to give a reason to exercise a Constitutional right, otherwise, it’s not a right.” The Supreme Court agreed, and New York (and the 17 or so other states that had discretionary permit schemes) had to change from “may issue” to “shall issue.”

In addition, the Court came up with a new standard for determining constitutionality of gun laws. Instead of a cost-benefit analysis, courts now must use a “historical analog” test. Were there any 18th Century laws prohibiting certain classes of weapons? No. Then forget about banning Saturday Night Specials or “assault weapons.” (The late gun rights crusader, Don Kates, used to say that a Saturday Night Special was a gun shorter than 12 inches, and an assault weapon was one 12 inches or longer.) Were there historical analogs to bans on bump stocks? (By the way, the ban on bump stocks was an Executive Order from Donald Trump, so keep in mind that while he is worlds better than President Showerdaddy, he is no great champion of Second Amendment rights, and needs to be watched carefully.)

Here’s the problem with that: it harkens back to the “longstanding” concept. What if there were some bad 18th Century gun laws that should be nullified? (Think slavery again. Longstanding is not necessarily good.) Would it not have been better to evaluate a proposed law by how well it advances the original purpose of the Second Amendment, namely to have an armed citizenry, with the equipment and training (i.e., “well regulated), to forestall tyranny?

The other huge problem is that Bruen is easily circumvented. Anti-Rights states have simply said, “Fine. We ‘shall issue’ permits to all applicants. Just fill out this 100-page form (with no spelling or punctuation errors), take 100 hours of training, pass the impossible-to-pass qualification course, and pay the non-refundable application fee of $5,000.” In Chicago, after McDonald, the city actually required applicants to get training, but prohibited gun stores and training facilities within the city limits. (Regulation of commercial sales, remember?) At least one state required training and qualification before being able to take possession of a gun! Neat trick.

Anyway, one question the Court has glaringly avoided in all these cases is, “Hold on a minute. Since when do you need a government permit to exercise a right?” Do you need a permit to read newspapers and books? To own a telephone or computer? To be free from being searched without a warrant? To not receive cruel and unusual punishments? The whole concept of getting permission to exercise a right (which, again, began with Jim Crow laws) is unconstitutional.

US v. Rahimi

Zackary Rahimi was, and presumably still is, a piece of ordure (POO). He roughed up his girlfriend, and shot at a bystander who tried to come to her aid. She petitioned the court for a protective order, claiming that he was a danger to her. The judge agreed, a prohibited the POO from possessing guns. Later, Rahimi got caught shooting a gun at somebody else, and so was charged with violating the court order.

Question: Can a judge take away somebody’s Constitutional rights based on a judge’s opinion, rather than a trial, with evidence, and prosecution/defense arguments, and a jury decision? (I.e., “due process.”)

The Court struggled with this because they really wanted to find Rahimi guilty. They forgot, though, about Justice Frankfurter’s wisdom in U.S. v. Warin:

“The safeguards of liberty have frequently been forged in controversies involving not very nice people.”

Consider, for example, Miranda v. Arizona. Miranda was also a POO, probably worse than Rahimi. Miranda was a rapist. There was no doubt that he was guilty; the issue was whether he confessed without fully understanding that he did not have to confess. He had the right to remain silent. He had the right to an attorney. Nowadays, everybody agrees that even the worst POOs should be advised of their Miranda rights. Miranda rights are a perfect example of a safeguard of liberty being forged in a controversy involving a not very nice person.

Miranda was retried and convicted and went to jail, but based on forensic and witness evidence, not his confession. If the Court wanted to be sure Rahimi went to jail, then it could have thrown out the protective order violation, and let the local judge put him in the slammer for assault and domestic violence, and several counts of aggravated assault, or even attempted murder, for the shootings.

Instead, the Court found itself tied in knots over their own Bruen “historical analog” standard. Their law clerks managed to dig up a couple of sorta kinda historical analogs, which will only lead to more problems. For instance, they compared the protective order with the ancient (longstanding!) English law of “affray,” which prohibited people from “riding or going armed, with dangerous or unusual weapons, [to] terrify the good people of the land.”

Oh great, now the hoplophobes can come back with another “shot” at bump stocks, claiming they are dangerous, unusual weapons that terrify the good people of the land.”

The much bigger problem, though, is that protective orders, while usually justified (albeit useless, but that’s another story), too often are abused. Angry women sometimes accused their husbands of child molestation, to get sole custody. Sometimes women lie to the judge, and swear that the husband threatened to kill them, just to punish the husband for schtupping the barmaid by forcing him to get rid of his gun collection. What’s a judge to do? If the woman is not lying, and he does not order the gun ban, the blood is on his hands if the husband shoots the wife. But, if he grants an unjustified ban, the guy had to surrender his Constitutional rights to keep and bear arms. No skin off the judge’s nose. Best to grant all the protective order gun bans as a matter of course.

All that said, recent Second Amendment rulings have been mostly positive. While they could have been better, they certainly are better than they would have been if Merrick Garland were a Justice, or if Hillary Clinton, rather than Donald Trump, had appointed three justices. Thank you, Donald Trump!

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