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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.

Reader Discussion

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on February 05, 2019 at 08:55:28 am

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,”

It is interesting that Judge Easterbrook does not recognize that the Bill of Rights as a whole is based on the Antifederalist perception of the nature of government rather than the technology of 1791. If we are to buy that argument we could argue that the method of snooping in 1791, while prohibited is not the same as interception of cell phone traffic. I could argue that cell phone transactions are radio broadcasts in which there is no expectation of privacy in a broadcast signal and that behavior at a frat party may be shared around the world before the party is over, but that is for another menu. Similarly, not even Dr Franklin or Dr Rush would have envisioned the internet a a venue for speech.

The general definition of the “militia” in the nineteenth century was the body of the people trained in arms. The purpose of the civilian marksmanship program was to remedy the unreadiness of the public for a major war. While the American Revolution began in James Otis, Jr.’s arguments in 1761, the War for Independence began with the authorities’ attempt to seize civilian arms at Concord in 1775.

The Bill of Rights of 1689 had a proviso about being waive in time of War England—who really has power in the UK anyway—has carefully maintained a state of conflict since.

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Earl Haehl
on February 05, 2019 at 11:40:56 am

Yes.

Article I, section 8 empowers Congress to only provide and maintain a navy consisting of wooden sail-powered vessels armed with muzzle-loading black powder cannon.

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z9z99
on February 05, 2019 at 11:42:53 am

In reply to Judge Easterbrook, containing within in it all respect due to him, a cannon very well might be considered a weapon in use at the time of ratification and, likely, might be considered a weapon bearing, as he frames it, a “reasonable relationship to the preservation or efficiency of a well regulated militia.” I, therefore, from my inferior vantage point, cannot grasp how he might believe this formula has any utility to achieve his agenda.

As to the last paragraph of Mr. Haehl’s note, immediately above, my mind is, as it is in J. Easterbrook’s case, too opaque to understand what is meant.

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Robert H. Howerton
on February 05, 2019 at 12:37:35 pm

Yep - on Haehl's last paragraph AND on the issue of canons. following Easterbrooks logic, I have just completed, via Amazon, of course, the purchase of an 88mm Howitzer and plan on placing it on my front lawn. I will 8bear* witness to the esteemed Justice Easterbrook's persuasive logic.

Gawd, this will be fun!!!!!

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gabe
on February 05, 2019 at 14:52:54 pm

The average police officer IQ is 104, but only 0.5% of New Yorkers are eligible to carry guns in public like the police? Maybe New York should set up a free public education system to lift their citizens out of intellectual poverty.

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Officer HighTower
on February 05, 2019 at 16:22:37 pm

From and originalist point of view, the problem with the Supreme Court's 2nd Amendment jurisprudence is that they're not supposed to have one beyond the occasional necessity of striking down any federal law that infringes upon the right of the people to keep and bear arms.

This highlights the fundamental error of incorporating the Bill of Rights into the 14th Amendment and then applying the whole thing to the states.

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EK
on February 05, 2019 at 17:57:45 pm

Hopefully the Court will clarify the proper application of strict scrutiny to Second Amendment cases, which should be equally as strict as other fundamental rights.

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Tim
on February 06, 2019 at 06:11:17 am

The bill of rights, as stated in it's preamble applies only to the federal government and SCOTUS cannot amend the Constitution on it's own volition. State governments are free to violate Natural Law by restricting our right to keep and bear arms and for that matter, to restrict freedom of speech, religion, the press, etc. as long as "We the People" allow them to do it.

It is the responsibility of the people to guard against government intrusion into our private lives and our natural rights.

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Jim Lewis
on February 06, 2019 at 18:37:00 pm

The Fourteenth Amendment applied the Bill of Rights to the states.

But even before that, the thirteenth amendment outlawed slavery. The foundation of slavery is censorship and disarmament, so the beginning of freeing slaves is allowing them to speak their minds, and defend their lives , liberty, and property. If you can't defend your fortune, you will end up impoverished and back in servitude. If you can't speak your mind, you'll end up like Amelie Zhao.

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Whiterock
on February 07, 2019 at 13:45:38 pm

Defying the Supreme Court ruling that g̶u̶n̶s̶ media in common use are constitutional, Easterbrook insisted it is “better to ask whether the regulation bans w̶e̶a̶p̶o̶n̶s̶ media that were in common use at the time of ratification [1791] and have “some reasonable relationship to the preservation or efficiency of a̶ ̶w̶e̶l̶l̶ ̶r̶e̶g̶u̶l̶a̶t̶e̶d̶ ̶m̶i̶l̶i̶t̶i̶a̶ free speech,” both points explicitly and emphatically rejected by the Supreme Court.

Now that would seem stupid, wouldn't it?

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Dan Tige
on February 17, 2019 at 11:55:16 am

[…] Shapiro, Cato, Jacob Sullum (including headline), Dave Kopel (“eccentric and abusive”), Joyce Lee Malcolm on New York State Rifle and Pistol Association Inc. v. City of New York, New […]

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“Have Gun, Can’t Travel” | Overlawyered
on April 14, 2019 at 02:05:58 am

Excellent and succinct podcast. I love these monologues Tim. I would love to hear one about your current exercise regimen with a real focus on details like volume, frequency, reps, cadence, protocol, etc. Great work,LawrenceLikeLike

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Monnie Moynahan
on April 14, 2019 at 17:52:37 pm

Now I am pointing out that The Entire Bill of Rights of 1689 was part of the "living constitution" of England and Wales and had a proviso that it would be waived in a state of military Exigency .As far as I can tell parliament is operating as if it is no longer a part of the British Constitution.

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Earl Haehl

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.