Alexander's Column

SCOTUS Ignores the Second Amendment ... Again

The future of American Liberty rests on the composition of the federal courts.

Mark Alexander · Jun. 16, 2020

The Supreme Court has, once again this week, declined to hear challenges to state- and local-government infringements on the “right of the people to keep and bear arms,” which is indeed the “First Civil Right” of all law-abiding Americans, as eshrined in our Constitution’s Second Amendment.

The great irony of the High Court’s silence on these challenges is that, as our Constitution’s most noted scholar and jurist Joseph Story wrote in his exhaustive Commentaries on the Constitution of the United States (1833), “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of the republic; since it offers a strong moral check against usurpation and arbitrary power of the rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” In other words, the Court has refused to take up cases essential to the protection of the founding document that empowers the courts.

In their dissenting opinion regarding the SCOTUS denial to consider these cases, Justice Clarence Thomas, with Justice Brett Kavanaugh, wrote:

“The text of the Second Amendment protects ‘the right of the people to keep and bear Arms.’ We have stated that this ‘fundamental righ[t]’ is ‘necessary to our system of ordered liberty.’ Yet, in several jurisdictions throughout the country, law-abiding citizens have been barred from exercising the fundamental right to bear arms because they cannot show that they have a ‘justifiable need’ or ‘good reason’ for doing so. One would think that such an onerous burden on a fundamental right would warrant this Court’s review. This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights. … But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the Court simply looks the other way.”

They conclude:

“It appears that a handful of States throughout the country prohibit citizens from carrying arms in public unless they can establish ‘good cause’ or a ‘justifiable need’ for doing so. The majority of States, while regulating the carrying of arms to varying degrees, have not imposed such a restriction, which amounts to a ‘[b]a[n] on the ability of most citizens to exercise an enumerated right.’ The Courts of Appeals are squarely divided on the constitutionality of these onerous ‘justifiable need’ or ‘good cause” restrictions.’ One of this Court’s primary functions is to resolve ‘important matter[s]’ on which the courts of appeals are ‘in conflict.’“

But the justices failed to do so, as they have for the last decade. As we have noted many times before, the future of American Liberty rests on the composition of the federal courts. The Supreme Court is now generally divided between those who abide by their oaths ”to support and defend“ our Constitution and act accordingly and those who endeavor to rewrite our Constitution. And correcting that divide rests on the reelection of Donald Trump and retaining the Republican Senate majority, as the next president will have one or two SCOTUS nominees who will finally shift the balance of the High Court back to its constitutional authority and mandate.

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