With the District of Columbia v. Heller decision in 2008 and the McDonald v. Chicago decision in 2010, the United States Supreme Court reaffirmed the individual right to possess a firearm in the home for self-defense.
Since then, it’s been…crickets when it comes to the Second Amendment. Despite a wealth of contradictory lower court rulings creating potential Supreme Court review of everything from carrying guns in public to prohibitions on “assault weapons” or magazine limitations, the Roberts-led Court has essentially refused to take on Second Amendment cases.
It’s been the hope of the pro-Second Amendment groups that the confirmation of a third Trump-appointed Justice, Amy Coney Barrett, would compel Chief Justice Roberts to once again revisit the many open questions regarding the right to keep and bear arms. So far, that’s not happened.
So what’s ahead? What’s the potential for the Supreme Court being forced to hear Second Amendment cases, especially with a less-than-friendly administration poised to take occupancy of the White House?
Yesterday, I had the opportunity to participate in a webinar given by the Liberty & Law Center of the Antonin Scalia Law School of George Mason University. During that webinar, Professor Nelson Lund and Associate Professor Robert Leader discussed a variety of topics, from the idea of “strict scrutiny” as the standard of 2A case review to the potential for executive actions being used against guns and gun ownership because legislative actions have proven to be a dead end for anti-gun groups.
Lund, author of The Future of the Second Amendment in a Time of Lawless Violence, says politicians hold too-narrow a definition of “public safety” and it drives some of the more unreasonable positions against guns. Instead, he writes, “the most practically important Second Amendment issue that is ripe for Supreme Court resolution concerns the scope of the constitutional right to bear arms in public.”
“The right to have a gun in the home for personal protection,” he says, “was settled with Heller and McDonald. Most other issues, however, were untouched.”
The Second Amendment, he suggests, reflects a broad concept of public safety. And there’s the inevitable conflict. Government, in the guise of public safety, he says, actually deprives individuals of the means to protect themselves. “
“Armed citizens,” Leider has written, “take responsibility for their own security, thereby exhibiting and cultivating the self-reliance and vigorous spirit that is ultimately indispensable for genuine self-government.”
If the Court fails to demonstrate that understanding, Leider asserts, they will “help the nation take significant step toward the soft despotism to which Tocqueville feared we would succumb.”
Associate Professor Leider believes that a core issue is government’s under enforcement of law for core crimes. That, he says, is a core problem for disadvantaged and rural communities and for everyone else during times of civil unrest. He believes the decentralization of force, making it easier for individuals to protect themselves, reduces reliance on a police force. He calls it a case of “a mismatch between public duties and private rights.” Providing effective law enforcement is a public duty, but not a private right. Because of that, individuals have no claim that the government adequately enforce the law or protect them against unlawful violence.
Consequently, he asserts, self-help and private law enforcement are the best remedies when governments undersupply needed levels of police protection. To make that point, he cited the fact that during this summer’s rioting, “the buildings undamaged in those riot-torn areas were the ones protected by armed individuals.”
In the case of the St. Louis, Missouri homeowners originally charged for using firearms to protect their home against demonstrators, he explained, while the prosecution was pushed by a politically motivated prosecutor, the charge was correct under current Missouri law. “Missouri state today says brandishing a firearm constitutes deadly force,” he explained, “but the prosecutor was removed for charging them. Now, it’s reasonable to expect the state legislature to change that through a what would be a modification to include a civilian (sic) version of qualified immunity in cases of violent demonstrations.”
While the Supreme Court was the focus, the professors were also asked where they thought it likely to see a Biden administration act on the Second Amendment?
“Executive actions,” they both agreed, with the likely areas to include executive actions tightening the definition of “sporting arms” to restrict importation of foreign-manufactured guns and parts, similar restrictions on the import of American made products, a possible ban on pistol braces, and a broadening of the definition of what constitutes a firearms dealer. “If the Biden administration broadens the traditionally narrow definition of ‘firearms dealership,’” says Leider, “they essentially mandate that private gun transactions will require background checks.”
“There’s a reality that needs to be recognized,” Lund said, “in firearms, restricting small things don’t affect many people. It’s easier to get away with those. The Clinton administration lost Congress on gun control, the Obama administration learned that lesson and used executive actions because they couldn’t get laws passed in Congress. I don’t suspect the Biden administration will have forgotten that lesson.”
Consequently, they agreed, that rather than expecting a wealth of legislation, it’s more likely to be executive actions on the national level, coupled with other actions on the state levels. “What’s likely,” Lund said, “is that red states will get redder, while blue states get bluer.”
That’s not a comforting thought in a country already bitterly divided over everything from the results of the election to the pandemic. It’s equally disquieting to think the Supreme Court, while different in its makeup, is still near impossible to “read” when it comes to the Second Amendment.
It’s not as if there’s no legal “hint” that the high court will need to rule on a number of issues.
Right now, Smith & Wesson is suing the State of New Jersey for what it calls an “unconstitutional fishing expedition” to try and curtail gun rights via a whole new tactic: false advertising claims.
New Jersey AG Gurbir Grewal has, according to the suit, “tried everything in his power to stymie gun sales” and he is now “sifting through decades of company advertisements and marketing materials in an ‘extra-legal’ attempt to restrict the right to bear arms.”
Grewal, S&W alleges, is trying to take consumer comments and turn them into claims made by the company in their advertising. It’s not difficult to make the case that New Jersey is making every effort to demonize guns, law-abiding gun owners and gun companies.
New Jersey already has what they call a “name and shame” policy where they name the brand of gun used in commission of a crime. In that, Smith & Wesson contends, Grewal has “tried to connect Smith & Wesson with ‘crime guns’ in an extra-legal attempt to branch the company as a bad actor.”
Those aren’t legislative actions, but they are very broad interpretations of the law, designed to reinforce a predetermined outcome- the blaming of gun companies for bad actions of people using guns. As Smith & Wesson describes the “name and shame” policy: “like listing the brand of car used by drunk drivers.”
Those potentially overreaching actions by state and local governments will likely trigger legal challenges based on administrative law, not criminal law. After all, the state’s not violating a law, it’s broadening its interpretation of the law well beyond any reasonable intent.
All grist for the legal mill.
There were, essentially, two major events that drove the interest in the Second Amendment: the rioting over the summer (and the wildly divergent responses by state and local governments), and the confirmation of Justice Amy Coney Barrett to the Supreme Court, potentially tilting the court toward the more traditional interpretation of constitutional law.
Both alarmed liberals, but for different reasons. They fear a more conservative Supreme Court will overturn many of the more liberal opinions of the past. During the riots they saw liberal political leaders issue “stand down orders” to the police, essentially allowing rioters free rein in large sections of liberal cities, and the destruction that resulted from those decisions.
The riots, Dr. Lund notes, “definitely damaged their arguments that ‘we don’t need guns to protect ourselves anymore.”
“In fact,” he said, “the riots have formally anti-gun liberals seriously reexamining their positions.”
That’s not necessarily a bad thing, especially, as they pointed out “concealed carry license holders actually have a lower crime rate than the police.”
As the old expression goes “an armed society is a polite society.”
