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Will the Right to Bear Arms Become a “Constitutional Orphan”?

After nearly a decade rejecting Second Amendment cases, the Supreme Court has just agreed to hear New York Rifle & Pistol Association v. City of New York. It is high time and not a moment too soon. Since McDonald v. City of Chicago in 2010 when the Court incorporated “the right of individuals to keep and bear those arms in common use for self-defense and other lawful purposes” a batch of state and local statutes, with the approval of the lower courts, have made a nonsense of the Court’s ruling, reducing, in Justice Thomas’s words, the individual right to be armed to “a constitutional orphan.”  

A few examples of this stubborn defiance of the Supreme Court’s Second Amendment opinions will suffice. Judge Easterbrook of the Seventh Circuit Court of Appeals had no problem affirming the Chicago gun ban even after the Court overturned Washington D.C.’s identical ban in District of Columbia v. Heller. The Supreme Court then overturned the Chicago ban in McDonald v. City of Chicago and incorporated the Second Amendment throughout the country. Undeterred, five years later Easterbrook upheld a Highland Park, Illinois ban on weapons the city defined as “assault weapons.” These included any semi-automatic rifle taking a large capacity magazine and sporting certain cosmetic features. Although the banned firearms are among the most popular hunting rifles in the country used safely by millions of Americans, Highland Park branded them “dangerous and unusual.” Defying the Supreme Court ruling that guns in common use are constitutional, Easterbrook insisted it is “better to ask whether the regulation bans weapons that were in common use at the time of ratification [1791] and have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” both points explicitly and emphatically rejected by the Supreme Court. For good measure Easterbrook added that other questions about Second Amendment protection should be clarified by “the political process and scholarly debate.” Judge Manion, the lone dissenter in the 2/1 decision, found both the Highland Park ordinance and the Seventh Circuit’s opinion “directly at odds with the central holdings of Heller and McDonald.

In similar fashion the Ninth Circuit upheld two blatantly unconstitutional California statutes. Peruta v. California focused on the right of law-abiding citizens to bear arms in public. California law forbid carrying a gun openly in public while requiring a showing of “good cause” among other criteria for carrying a gun concealed.  It was left to the local sheriff to decide what constituted “good cause”. Since the sheriff in San Diego, petitioner’s county, specified that “concern for one’s personal safety” did not “alone” satisfy this requirement, citizens were, for all practical purposes, barred from carrying a firearm at all. A Ninth Circuit panel agreed this was unconstitutional, but when the case was heard en banc a majority of the judges reversed, focusing only on whether the Second Amendment protected a right to carry a concealed firearm, ignoring the fact open carry was already forbidden. With both effectively barred Californians had no right to bear a firearm at all.

In Pena v. Lindley, The Ninth Circuit Court of Appeals upheld the constitutionality of California’s Unsafe Handgun Act which included the stipulation that all new handguns must stamp “microscopically the handgun’s make, model, and serial number onto each fired shell case,” although “no handguns were available in the United States that met the miscrostamping requirements.” Nevertheless, the judges added that “simply because no gun manufacturer is `even considering trying’ to implement the technology, it does not follow that microstamping is technologically infeasible.” Californians are free to buy handguns that do not exist.

Now for the New York Case, New York State Rifle & Pistol Assoc. v. City of New York that the Supreme Court has agreed to hear. This involves a New York City licensing regulation (Rule 5-23) for guns kept on the premises, put in place in the years before Heller recognized the fundamental right to keep and bear arms. It prohibits handguns kept in the home from being taken outside except to a shooting range within the city while unloaded and locked in a container separate from the ammunition. This regulation remains despite the Supreme Court affirming the right of individuals to bear a gun for self-defense.  

Justice Thomas found it “extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.” A gun outside the home locked in a compartment separate from the ammunition is clearly useless for self-defense. As Heller explained, “[a] statute which, under the pretense of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defense [is] clearly unconstitutional.” Plaintiffs also claimed the regulation violated their right to travel and interfered with interstate commerce, two arguments that failed to persuade.

In his decision, District Judge Robert Sweet sidestepped the right to carry a weapon in public for self-defense. On appeal the Second Circuit Court judges, claiming to employ heightened scrutiny, unanimously upheld the District Court ruling insisting the Supreme Court “puts the focus where it belongs: on the core right of self-defense in the home.” That claim is especially ironic since New York City’s draconian requirements for obtaining a gun for self-defense in the home has resulted in approval of only 40,000 handgun licenses for the city’s population of 8,550,405 residents.    

The Second Circuit judges claimed to have used heightened scrutiny although relying on a single affidavit from the former commander of the state licensing division while arguing plaintiffs had failed to describe “a substantial burden on those rights.” “Denying a fundamental individual right by applying a version of heightened scrutiny unrecognizable in any other constitutional context,” petitioners point out, poses a threat to all constitutional rights. Now the Supreme Court has agreed to hear the case. Let us hope that the justices will rescue the right to keep and bear arms from those who would defy the Court and the Second Amendment’s Framers.