The Second-Class Second Amendment?
It's past time for the Supreme Court to stop side-stepping any and all questions about gun rights.
The Left has, over time, perpetuated the idea that the Bill of Rights, whose 10 amendments were designed to protect individual citizens from government tyranny, somehow includes a Second Amendment that empowers the government to determine when and where those citizens can carry weapons. But why would the Founders go to the trouble of ensuring such rights while allowing the government to snatch them away from an undefended population?
Still, in 2008 the Supreme Court held 5-4 in District of Columbia v. Heller that the Second Amendment was an individual right, a decision that former Justice John Paul Stevens called the worst of his tenure. The Federalist’s David Harsanyi writes, “Earlier this year, in fact, Stevens implored Americans to do what he couldn’t while on the court, and repeal the Second Amendment.”
The fact that the Heller decision was even necessary reveals just how far we’ve fallen since our founding. The ruling came far too late to push back against decades of leftist propaganda and activism designed to convince millions of Americans that the Second Amendment was far different from the other nine rights — that it was neither individual nor narrowly limited but collective and extremely limited.
Since then, lower courts have had a field day misinterpreting the Constitution and upholding laws making it harder for citizens to acquire guns. For example, in 2016 the infamous Ninth Circuit Court determined in Peruta v. California that one must show “good cause” in order to carry a concealed weapon. Sadly, these kinds of outrageous decisions are free to stand as long as the Supreme Court refuses to hear key cases rather than establishing strong precedents that would put the issue to rest.
As John Yoo and James C. Phillips write at National Review, “Despite the text of the Second Amendment, supporters of a right to bear arms have rooted their arguments in a murky pre-constitutional right to self-defense. As a result, the Supreme Court has shied away from halting the spread of federal and state schemes for gun control, for which the cries will only rise higher after the recent mass shootings. Unless the new conservative majority on the Court, solidified by Justice Brett Kavanaugh’s arrival, places the right to bear arms on a par with the rest of the Bill of Rights, the coming blue wave of gun-control proposals may swamp what the Framers considered a core constitutional right.”
Justice Clarence Thomas made this clear when he recently wrote, “The Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it.”
In order to clarify the intent of the framers, Second Amendment proponents cannot merely fall back onto the amendment itself, but must go back further to understand its history. We must arm ourselves with centuries of natural law and English common law principles in order to smash the collective-right theory of the 1960s. For now, conservatives are losing the public relations battle that works against the Second Amendment every time there’s a new mass shooting.
And we had better act swiftly. Nancy Pelosi and company aren’t about to sit back when they take the reins from House Republicans in January.
Mark Walters writes that, with Democrats in power, “We will see a renewed push for expanded background checks and a ban on so-called high capacity magazines. And I expect we will see some form of ‘assault weapons’ ban as well as a push for federal Extreme Risk Protection Orders and red flag laws. These red flag laws disarm American citizens by violating their due process rights based simply on an allegation that someone may be a danger to themselves or others.”
All this would be of less concern if the Supreme Court and its new, more conservative majority would simply take up more Second Amendment cases and decisively reestablish the self-evident right of American citizens to defend themselves. Indeed, the High Court may be the last best hope for securing this right against a leftist obsession to take it away.