Mass shootings in recent years (including the targeting of school children) have incited anti-gun public outrage, which has been further whipped up by sensational media coverage and opportunistic anti-gun propaganda. Blame for these events is routinely attributed to commonly-owned semi-automatic firearms and large capacity magazines (LCMs), rather than to our country’s failed mental health system or the lunatics and criminals who perpetrate these atrocities. This has encouraged anti-gun politicians, riding this latest wave of impassioned (but misdirected) public sentiment, to enact laws banning so-called assault weapons and LCMs. To date, pro-Second Amendment legal minds have tried to defend the right to keep and bear arms based on politically correct arguments about the right of self-defense, while assiduously avoiding discussion of the main reason for adoption of the Second Amendment – to protect the people’s ability, in times of constitutional crisis, to confront the government with effective, deadly force, and thereby provide a check against government tyranny. Enabled by society’s politically correct silence and the public outrage over mass shootings, nine state legislatures, the District of Columbia, and a growing number of local jurisdictions have enacted assault weapon and/or LCM bans. Worse still, anti-gun majorities in six federal circuit courts of appeal have allowed these horrendously unconstitutional laws to stand. Precisely because no one wants to address the people’s need and right to be able to effectively confront the government with deadly force in the event the constitutional order breaks down, we are taking that issue on right here and now, regardless of how disturbing it will be to liberal, progressive, and anti-gun political sensibilities.
In Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018), a three-judge panel of Ninth Circuit appellate judges unexpectedly declared Hawaii’s good reason permitting scheme for open carry of firearms to be unconstitutional for violating the Second Amendment. The State of Hawaii would not accept that ruling, and asked the full Ninth Circuit to re-hear its appeal and reinstate Hawaii’s de facto ban on carrying firearms outside the home. That request was granted on February 8, 2019, but any success Hawaii might have in the full Ninth Circuit is likely to be short lived, or even still-born, because we expect the Supreme Court to declare good reason permitting schemes like Hawaii’s to be unconstitutional, in a case to be heard this fall: New York State Rifle & Pistol Association v. City of New York, No. 18-280. Read on for details.
On January 22, 2019, the Supreme Court granted certiorari in a Second Amendment case, ending nearly three years of silence regarding the scope of the Second Amendment – since Caetano v. Massachusetts, 136 S. Ct. 1027 (2016). The Court granted cert in New York State Rifle & Pistol Association v. City of New York, No. 18-280, a case from the Second Circuit Court of Appeals. NYSRPA appears to present the Supreme Court with an opportunity to speak to the full scope of the right to keep and bear arms, including the core rights of all citizens to keep firearms at home and to carry firearms on one’s person outside the home.
The courts’ post-Heller assault on the right to carry in public and on the type of firearms protected by the Second Amendment continues apace, and the Supreme Court is likely to face these issues in the foreseeable future. When it does, the Court will hold in its hands the constitutional right that protects all of our other cherished freedoms from being abridged (and eventually eliminated) by perpetually expanding, irrepressibly overreaching, tyrannical government. The Court had better get it right when it rules on these issues, because our basic liberties as Americans (especially the fundamental freedoms that make some among us uncomfortable), will depend on what the Court decides with respect to the full scope and intended meaning of the Second Amendment.