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LOWER COURT RULINGS ON THE SECOND AMENDMENT’S RIGHT TO BEAR ARMS WARRANT PROMPT CORRECTIVE ACTION BY THE SUPREME COURT

Introduction

The Second Amendment states:

“A well regulated Militia, being necessary to the security of a free state,
the right of the people to keep and bear Arms, shall not be infringed.”

Our courts are tasked with interpreting and enforcing this language to implement the framers’ intent and protect our fundamental, constitutionally-protected right to keep and bear arms from being abridged by the legislative and executive branches. If you have not been keeping up with developments in the law, prepare yourself for some very disturbing news about how our federal courts are mishandling their responsibility. We will mince no words here. The current state of Second Amendment jurisprudence in this country is a shambles. This article discusses this frightening state of affairs and suggests where we need to go from here to restore the Second Amendment to its essential and intended full scope.

First, some background is in order. In the wake of the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), gun rights/Second Amendment supporters hailed Justice Scalia’s in-depth, thoroughly-researched opinion for the majority, which upheld the right to keep handguns and other fully-assembled, immediately-operable firearms in the home. His opinion explained and held that, under the Second Amendment, the possession of handguns in the home, and the maintenance of handguns and other firearms in the home in fully-assembled, immediately-operable condition for purposes of self-defense, is an individual right which cannot be prohibited by statute or regulation. 554 U.S. at 628-30, 635-36.

We quietly warned everyone to remain wary of the decision in Heller, because Justice Scalia included a statement that the right secured by the Second Amendment “is not unlimited.”  Not surprisingly, this gratuitous pronouncement opened the door to ongoing, gun-controlling and gun-grabbing efforts to gut the right to keep and bear arms.1  Anti-Second Amendment judges sitting on the Circuit Courts of Appeal are now taking full advantage of the opportunities for mischief highlighted in Justice Scalia’s opinion, and their efforts to render the Second Amendment a meaningless nullity are meeting with success.  As discussed in more detail below, decisions in the Second, Third, and Fourth Circuits, and the recent First Circuit decision in Gould v. Morgan, Appeal No. 17-2202, Slip Opinion (1st Cir. November 2, 2018), have cut gaping holes in the Second Amendment’s protection of the right to bear arms.

The Elephant in the Room – Why the Second Amendment Exists

The operative language in the Second Amendment is absolutely clear:  “[T]he right of the people to keep and bear Arms, shall not be infringed.”  U.S. Const. amend. II. As the Supreme Court explained in Heller, the Constitution was written to be understood by ordinary citizens; its words and phrases were used in their normal and ordinary meaning to ordinary citizens in the founding generation.  Heller, 554 U.S. at 576-77.  The Second Amendment’s operative language, particularly when coupled with its prefatory clause, leaves no room for debate about the framer’s intent with regard to individual citizens’ right to keep and carry arms, whether inside the home or out in public.

In the wake of the majority opinion in Heller, there is also no legitimate dispute as to why the amendment was enacted.  The Second Amendment was adopted not merely to enable citizens to hunt, or target shoot, or defend themselves against personal attack and home invaders.  It was adopted to enable the citizenry to defend itself against a tyrannical central government, id. at 597-99, 606, even though this concept apparently frightens or completely escapes many Americans today.  This was made clear in Heller, where the Court explained the purpose and meaning of the Second Amendment’s prefatory clause, i.e., that “[a] well regulated Militia [is] necessary to the security of a free state”.

The Heller Court explained that the term “Militia” was understood to comprise all males capable of bearing arms, not state- and congressionally-organized militia units, and thus referred to each individual’s right to keep and bear arms.  Id. at 595-96, 608-09, 614-18.  The Court also found that to the framers, the phrase “the security of a free state” meant the “security of a free polity,” not the security of each of the several States making up the union.  Id. at 597.  The Court therefore held that properly understood, the amendment’s prefatory clause meant that an armed citizenry was essential to maintenance of our constitutional freedoms.  Id. at 597-99.  The Court thereby addressed a fundamental truth – the elephant in the room that neither side of the political spectrum will readily acknowledge – that one of the most important purposes of the Second Amendment was to enable armed citizens to better resist the tyranny of their own government if the constitutional order broke down.  Id.

 

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Construed as intended by the framers, and read in conjunction with the amendment’s operative language, the Second Amendment’s prefatory clause makes clear that an armed citizenry was considered essential to protect and maintain our fundamental rights, and to effectively resist unconstitutional overreaching by our own government.  In short, the framers included the Second Amendment in the Bill of Rights, and stated its operative language in absolute terms (i.e., that “the right of the people to keep and bear Arms shall not be infringed”), because they had just thrown off the shackles of a tyrannical monarchy, and they genuinely (and justifiably) feared that by creating a strong federal government, they would replace King George with an equally tyrannical central government.  Id. at 598-99, 612-13, 617-18.  Any judge or politician who tries to spin it otherwise is guilty of spewing progressive, gun-grabbing propaganda, and ironically is part of precisely the problem the amendment was intended to solve.2

The Procedural Truth Reflexively Shunned by

Progressives and Gun Grabbers: The Constitution

Can Be Amended, But Only by a Supermajority

The framers created a procedure for modifying the Constitution, which is set forth in Article V.   Using this procedure, the protections afforded by the Bill of Rights (including the right to keep and bear arms protected by the Second Amendment) can be amended, but only if the change is accepted by a super-majority vote of 75%.  U.S. Const., Art. V. This is of course very difficult to accomplish (and purposely so) to inhibit ill-conceived, repressive changes in our fundamental governing document that arise from the political passions of the moment. Progressives, liberals, and gun grabbers never openly and honestly pursue modification of the constitutionally-protected right to keep and bear arms, because they know they cannot muster the broad-based support required to legitimately modify the Second Amendment.  Instead, they exploit simple majorities in Congress and state legislatures who can be convinced in the heat of the moment to pass expedient, piecemeal legislation, in a relentless effort to disarm the American people. The framers never intended that the Second Amendment die the death of a thousand cuts at the hands of an inflamed, simple majority, or a constitutionally-indifferent, firearms-ignorant judiciary. The country’s failure to hew to Article V’s super-majority requirement is unwittingly enabling the intellectually-dishonest “progressive” politics of our time.

The Split in the Circuits Regarding the Right to Keep and Bear Arms

So where are we now, in the wake of Heller?  As Justice Scalia should have anticipated, anti-gun judges sitting on the United States Circuit Courts of Appeal have been doing their level best to gut the Second Amendment right to keep and bear arms, and they are succeeding with alarming frequency.  As a result, the circuit courts of appeal have split with respect to the scope of the right to keep and bear arms, particularly as it relates to the right to carry in public. As discussed more fully below, the time has come for the Supreme Court to re-engage and straighten out the growing chaos that is developing around the country with regard to the scope of the Second Amendment.  To accomplish this, the Court needs to grant certiorari (that is, to hear the appeal) that is expected from a decision in the First Circuit Court of Appeals in Gould v. Morgan, Appeal No. 17-2202, Slip Opinion (1st Cir. November 2, 2018).  Gould holds that individual citizens do not have an absolute right under the Second Amendment to carry a handgun, openly or concealed, in public (i.e., outside the home).  Slip Op. at 3, 12, 14-15, 24-30.

The Gould Line of Cases Negating the Right to Carry in Public

Gould involves a Massachusetts firearms licensing statute, as implemented in Boston and Brookline, pursuant to which the local chief of police has discretion to grant a license to carry a firearm if the applicant demonstrates good reason to fear injury, or to issue a license limited to use in sport or target practice.  To meet the requirement for issuance of an unlimited license to carry, the applicant must distinguish his/her own need for self-defense from that of the general public. Slip Op. at 4-6. These sorts of licensing schemes are now commonly referred to as “good reason” laws. Taking its lead from Justice Scalia’s gratuitous pronouncement in Heller, that “the right secured by the Second Amendment is not unlimited,” the First Circuit held that the challenged regime was permissible under the Second Amendment.  Id. at 3.

The Gould court addressed two issues to determine whether the Massachusetts statue licensing statute was constitutional.  First, does the Second Amendment protect the right to carry a firearm outside the home for self-defense? Second, if so, may the government condition the exercise of that right on a showing that a citizen has a good reason, beyond a generalized desire for self-defense, for carrying in public?  Id. at 12.  The Gould court answered the first question incorrectly, holding that the core right protected by the Second Amendment is limited to keeping and using firearms for self-defense in the home.  Id. at 24-28.  It did so by (i) ignoring the plain language of the Second Amendment’s operative clause, (ii) improperly rejecting the Supreme Court’s analysis of its history and intended meaning, and (iii) holding that carrying firearms for self-defense outside the home was not part of the core right protected by the amendment.  Id. at 19-22, 24-28.

Once it freed itself from the Supreme Court’s analysis in Heller, the Gould court answered its second question in the affirmative.  The Gould court applied a test known in constitutional circles as “intermediate scrutiny” to evaluate the Massachusetts licensing statute, and upheld the statutes constitutionality because it bore a substantial relationship to the important government interests of promoting public safety and preventing crime.  Id. at 19-20, 28-39.3

Prior to Gould, a number of other circuit courts of appeal used the same intermediate scrutiny analysis to uphold the constitutionality of good reason laws.  Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) (upholding the constitutionality of New Jersey’s good reason licensing scheme for carrying in public); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) (upholding the constitutionality of Maryland’s good reason licensing scheme for carrying in public); Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) (upholding the constitutionality of New York’s good reason licensing scheme for concealed carry).4

The controversy in Gould and cases like it involves the framers’ intent in using the words “bear arms” to describe the scope of a citizen’s God-given right to carry his/her gun.  In Heller, the Supreme Court reviewed founding-era sources for the meaning of the phrase “bear arms,” and held that it meant “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.”  554 U.S at 584. The Court pointed out that those same founding-era sources included examples in which arms were carried and used not just in the home, but in public. Id. at 588-89, 601.  The same concept, that bearing arms included carrying and using them outside the home, was widely found in authoritative, post-adoption case law and historical commentary.  Id. at 614-19, 629.  The Court concluded without hesitation that the right protected by the Second Amendment was understood by the framers to be “an individual right protecting against both public and private violence.”  Id. at 594.  Thus, Heller made clear that the right to “bear arms” recited in the Second Amendment includes the right to carry arms in public.

Notwithstanding Justice Scalia’s observation in Heller that “the right secured by the Second Amendment is not unlimited,” id. at 595, and his discussion of various potential regulatory measures that would pass constitutional muster, id. at 626-27 & n. 26, Heller certainly did not open the way for Gould and decisions like it to excise public carry from the core right protected by the Second Amendment.  If anything, Justice Scalia’s majority opinion in Heller reaches exactly the opposite conclusion.  As he pointed out, in the founding era, while armed resistance to government tyranny was a critical concern in passing the Second Amendment, the majority of citizens undoubtedly thought the right to keep and bear arms was even more important for self-defense and hunting.  Id. at 598-99.  It is beyond serious question that all of the purposes behind the amendment inherently involve the public carry and use of firearms – the right of self-defense no less so than its other purposes.5

If the Gould court had applied the analysis mandated by Heller, it would have struck down the Massachusetts statute without considering the statute’s purpose or how it went about accomplishing that purpose.  It would have deferred to and applied the Supreme Court’s historical analysis indicating that (i) self-defense was an important part of the core right protected by the Second Amendment, and (ii) public carry was part of that core right.  It would then have found that under its own terms, the Massachusetts licensing statute prevented ordinarily situated citizens from carrying a firearm in public for self-defense, and by completely prohibiting all but a small number of citizens from practicing a core protected right, violated the Second Amendment’s plain language and intent under any appropriately-worded judicial test the court might select or devise.   In short, Gould and the other decisions like it are not only a direct affront to the Supreme Court’s analysis in Heller, but to the core right of every citizen, expressly recognized in Heller, to carry arms in public for the purpose of self-defense.  See 554 U.S. at 584, 588-89, 594-95, 597-99, 601, 606, 614-19, 629.

The Wrenn Line of Cases Upholding the Right to Carry in Public

Gould and decisions like it directly conflict with post-Heller decisions in the District of Columbia, Seventh, and Ninth Circuits – i.e., Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017), Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), and Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018).

Like Gould did in Massachusetts, Wrenn addressed a District of Columbia statute which confined concealed carry of a handgun in public to those few citizens who could demonstrate a special need for self-defense distinguishable from the general community.  864 F.3d at 655-56. The D.C. Circuit acknowledged the rational basis, intermediate scrutiny, and strict scrutiny tests that have been used to evaluate various laws’ constitutionality. Id. at 656.  However, just as the Supreme Court did in Heller in evaluating the District’s ban on keeping handguns in the home, the D.C. Circuit struck down the District’s concealed carry law in Wrenn without applying any of the usual three levels of judicial scrutiny.  See Heller, 554 U.S. at 628-29; Wrenn, 864 F.3d at 665-66.

The Wrenn court concluded that the core right protected by the Second Amendment included publicly carrying guns for self-defense, both because the need for self-defense (one of the core purposes of the amendment pointed out in Heller) can arise outside the home, and because the language of the amendment’s operative clause, by its plain meaning, protects the right to carry arms outside the home.  Id. at 657-59, 661, 664.  Once it reached that conclusion, the Wrenn court found that the District’s concealed carry law, by its own design, barred almost everyone from exercising that right at all.  Id. at 665.6  In that way, the District’s concealed carry law completely prohibited most residents from exercising the constitutional right to bear arms, id., and was “necessarily a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen.”  Id. at 666.  The fact that the D.C. concealed carry law would allow a small number of D.C. residents (those few who could demonstrate a special need) to carry in public made no difference to constitutional review of the ban because, as the court explained, the point of the Second Amendment was not to ensure that some citizens would be able to defend themselves with firearms, but rather, that firearms would be available to each responsible citizen as a rule.  Id.

The Wrenn court recognized that Heller dictated the invalidation of “total bans” on Second Amendment rights without applying any constitutional balancing tests (in Heller, with reference to the District’s total ban on keeping handguns in the home), and held that the same treatment also must apply to total bans on carrying in public by ordinarily-situated individuals covered by the amendment:

[U]nder [Heller], complete prohibitions of Second Amendment rights are always invalid. . . . It’s appropriate to strike down such “total ban[s]” without bothering to apply tiers of scrutiny because no such analysis could ever sanction obliterations of an enumerated constitutional right. . . . With this categorical approach to such bans, [Heller] ensured that judicial tests for implementing gun rights would not be misused to swallow those rights whole.  [Heller] essentially held that the right to keep and bear arms must mean at an absolute minimum the right to own a gun, so any acceptable standard of review would have to accommodate that fact.  By declining to apply tiers of scrutiny to a total ban on ownership, [Heller] closed off the possibility that courts would erroneously find some benefits weighty enough to justify other effective bans on the right to keep common arms.  We would flout this lesson of [Heller] if we proceeded as if some benefits could justify laws that necessarily destroy the ordinarily situated citizen’s right to bear common arms – a right also guaranteed by the Amendment . . . .

Id. at 665 (citations to Heller omitted).
In view of the Supreme Court’s analysis in Heller, the Wrenn court held that it

needn’t pause to apply tiers of scrutiny, as if strong enough showings of public benefits could save [the] destruction of so many commonly situated D.C. residents’ constitutional right to bear common arms for self-defense in any fashion at all. Bans on the ability of most citizens to exercise an enumerated right would have to flunk any judicial test that was appropriately written and applied, so we strike down the District’s law here apart from any particular balancing test. . . . [P]ossession and carrying – keeping and bearing – are on equal footing. So [Heller’s] language and logic all but dictate that no tiers-of-scrutiny analysis could deliver the [District’s concealed carry law] a clean bill of constitutional health.

Id. at 666.

To the same effect is Moore, in which the Seventh Circuit, independent of tiers of scrutiny, struck down an Illinois statute that prohibited any person, other than police, security personnel, hunters, and members of target shooting clubs, from carrying a firearm openly or concealed outside the home.  702 F.3d at 934, 936-42. Unlike the renegade Gould court, which thought itself free to do its own historical analysis of the framer’s intent behind the Second Amendment, Slip Op. at 19-22, the Seventh Circuit acknowledged in Moore that it was bound by the Supreme Court’s historical analysis and resulting understanding of the Second Amendment’s intended meaning, because the Supreme Court’s analysis was central to its holding in Heller.  Moore, 702 F.3d at 935, 937. 

In Young, the Ninth Circuit addressed a Hawaii firearms licensing statute that required individuals seeking a concealed carry license to show an exceptional case involving reason to fear injury to person or property.  In addition, the challenged statute restricted the availability of licenses permitting open carry of a firearm in public. Open carry licenses were available only to persons engaged in the protection of life and property, and only upon a sufficient showing of urgency or need.  896 F.3d at 1048, 1050. The Ninth Circuit held that the issues with respect to concealed carry licenses were controlled by the court’s en banc decision in Paruta, which upheld the constitutionality of California’s similar good cause restrictions on issuance of concealed carry licenses.  Young, 896 F.3d at 1050, 1068.  However, the Young court held that Paruta left unresolved the question whether the Second Amendment encompasses the right to open carry in public.  Id.

The Ninth Circuit, like other federal circuit courts of appeal post-Heller, employs a two-step approach to Second Amendment challenges.  It first asks whether the challenged law burdens conduct protected by the Second Amendment.  If so, it ordinarily applies one of the levels of means-end judicial scrutiny described in footnote 3 above to determine whether the law is constitutional.  Id. at 1051.  See, e.g., Woollard, 712 F.3d at 874-75 (citing cases).

With respect to how it should interpret the Second Amendment, unlike the First Circuit in Gould, the Ninth Circuit accepted the guidance provided by the Supreme Court’s decisions in Heller and McDonald v. City of Chicago, 561 U.S. 742 (2010).7 Young, 896 F.3d at 1050, 1051.  That being said, the Young court went ahead with its own lengthy textual and historical analysis to determine the meaning and outer boundaries of the Second Amendment as it related to open carry of firearms outside the home.  The Young court concluded, based on (i) the amendment’s plain language, (ii) the courts’ interpretation of that language in Heller, Wrenn, and Moore, (iii) analysis of founding-era treatises, (iv) nineteenth century judicial interpretations of the amendment, (v) pertinent post-adoption, Civil War era legislation, and (vi) in-depth analysis of English predecessors to the Second Amendment, that the amendment must encompass the right to openly carry a firearm in public for self-defense.  Id. at 1052-68.  Because the Hawaiian licensing statute unquestionably infringed upon that right, id. at 1068, the Young court was faced with the issue resolved by the Supreme Court in Heller – i.e., whether to apply one of the three tiers of judicial scrutiny ordinarily applied to regulatory statutes, or to strike the licensing scheme outright for severely restricting a core right protected by the Second Amendment.

The Young court explained that in determining what level of scrutiny to apply, it had to consider (i) how close the law comes to the core of the Second Amendment right, and (ii) the severity of the law’s burden on the right.  Id. at 1068.  The court evaluated those two factors using a sliding scale:  “On one end, [a] law that imposes such a severe restriction on [a] core right [of the Amendment] that it amounts to a destruction of the right, is unconstitutional under any level of scrutiny. . . . On the other end of the spectrum, intermediate scrutiny is appropriate if the challenged law does not implicate a core Second Amendment right, or does not place a substantial burden on the Second Amendment right.”  Id. (internal quotation marks and citations omitted).

Consistent with Heller, the Young court found that carrying firearms openly in public for self-defense was part of the core right protected by the Second Amendment.  Id. at 1068-70.  In addition, the Young court found that by restricting open carry solely to persons who serve as security guards, and refusing to issue all but a handful of concealed carry licenses under its firearms licensing statute, Hawaii’s licensing scheme entirely foreclosed the typical, law-abiding citizen from exercising the core Second Amendment right to bear arms for self-defense.  Id. at 1070-71 & n. 21.  In doing so, the statute effectively obliterated a core Second Amendment right, and (like the good reason licensing scheme in Wrenn) was held to be unconstitutional and void under any standard of judicial scrutiny.  Id. at 1071.

Wrenn, Moore, and Young make clear that the constitutionally-protected right to bear common arms enables the typical, law-abiding citizen to carry a gun in public.  In addition, Wrenn and Young make clear that carry laws like the ones they struck down – which require a showing of special need to obtain a license to carry – are inherently unconstitutional under the Second Amendment.  The decision in Gould (and the cases like it) upholding the constitutionality of good reason licensing laws directly conflicts with Wrenn and Young.8

Will the Supreme Court Step Into the Fray?

The conflict between the Gould and Wrenn lines of cases, and between the Gould line of cases and Heller itself, present sufficient grounds for the Supreme Court to grant certiorari in Gould (i.e., to hear the appeal expected in that case), and resolve these conflicts.  See Supreme Court Rules 10(a) and 10(c).

Many in the gun community have wondered how we got here after the Supreme Court’s decisions in Heller and McDonald.  Why has the Supreme Court supinely permitted state legislatures and the federal courts of appeal to flaunt the language and intent of the framers after protecting the Second Amendment from attack in Heller and McDonald?  

The Supreme Court decides whether to grant certiorari (i.e., to hear an appeal from a circuit court decision) using what is known as “the rule of four.”  Under that rule, four Justices must vote in favor of granting a petition for certiorari, in which case the appeal is heard by the full Court.  One might hypothesize that there was sufficient disagreement among the Heller majority with respect to assault weapons bans and right to carry generally that it would have been more risky to the Second Amendment than constructive to grant cert in the earliest assault weapons ban and right to carry cases.  If that is so, one might also expect, with the addition of Justices Gorsuch and Kavanaugh, and support from Justices Thomas and Alito, that there are now four votes available to get these issues before the Court. The question then becomes, with Justices Scalia and Kennedy gone from the Court through their death and retirement, respectively, would Chief Justice Roberts vote with Justices Thomas, Alito, Gorsuch, and Kavanaugh to restore the Second Amendment’s proper and intended scope? 

This process of “nose counting” is an important part of the calculus that determines whether the originalists on the Court will vote to hear these issues in the near future, or will kick the can down the road one more time, until President Trump has an opportunity to appoint one or two more constitutional originalists to the Court.

To What Extent Does the Second

Amendment Protect Open Versus Concealed Carry?

As can be seen from the Wrenn and Gould lines of cases, the courts are being called upon to decide whether it is constitutional for a state which has prohibited one type of public carry (e.g., open carry) to also prohibit the other (e.g., concealed carry), or for a state which has prohibited neither type of public carry to simultaneously prohibit both of them.  As discussed in the introduction above, Justice Scalia opened the door to this issue in Heller by mentioning historical limitations on concealed carry without expressly questioning their constitutionality.  As a result, Heller is routinely misapplied in judicial efforts to support restrictions on carrying in public.

While Justice Scalia did mention the existence of historical restrictions on concealed carry, and observed that the majority of 19th century courts thought those restrictions were permissible under the Second Amendment, he did not bless them as constitutional in Heller.  554 U.S. at 626-27.  This was no accident.  As his opinion makes clear, the core right protected by the Second Amendment includes a right to carry in public.  Id. at 584, 588-89, 594-95, 601, 614-19, 629.  Instead of giving blanket approval to bans on concealed carry, the majority opinion in Heller indicates that concealed carry prohibitions may be proper, but only so long as individuals retain other means to exercise their Second Amendment right to carry arms, such as open carry.  Where other means of exercising the Second Amendment right to bear arms (such as open carry) are foreclosed, a prohibition on carrying concealed would implement the type of total ban on a core right – i.e., the right to carry a firearm in public – that violates the Constitution.  See, e.g., Peruta, 824 F.3d at 946-51 (Callahan, dissenting).  One would also have to conclude that in a state where concealed carry is already prohibited, following up with an actual or constructive ban on open carry would also be unconstitutional – precisely the situation faced by the Ninth Circuit in Young.  

And of course, under Heller, simultaneous prohibitions on both open and concealed carry would be unconstitutional as well.  See Moore, 702 F.3d at 934, 936-42.

Does the Second Amendment Protect

Ownership and Use of Modern “Assault Weapons?”

In addition to the split in the circuits discussed above regarding the right to carry firearms in public, we will address here the Fourth Circuit’s misguided decision in Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc).  In that case, the Fourth Circuit upheld Maryland’s statutory ban on the sale or possession of commonly-owned semi-automatic rifles (such as the AR-15) not ordered or owned prior to October 1, 2013, and the manufacture, sale, or purchase (but not the possession) of large capacity detachable magazines.  The Fourth Circuit’s decision in Kolbe runs afoul of the Supreme Court’s pronouncement in Heller that the Second Amendment protects the private ownership of small arms which are in common use by the citizenry for lawful purposes.  Today, this includes commonly-owned and used firearms such as semi-automatic rifles and pistols, and accompanying high-capacity, detachable magazines, which together are relentlessly vilified by progressive media and gun-grabbers as “assault weapons.”

Some progressives and gun grabbers intent upon gutting the Second Amendment have argued that the category of weapons protected by the Second Amendment should be limited to flintlock rifles and pistols in common use by citizens during the 18th century.  In Heller, the Court described that argument as “bordering on the frivolous,” and pointed out that the Court interprets the Bill of Rights to encompass modernized versions of things that existed in the 18th century.  554 U.S. at 582.  The Heller Court unhesitatingly stated that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”  Id.  Based on its precedents, the Court further stated that the amendment protects arms in common use by law-abiding citizens for lawful purposes like self-defense.  Id. at 624-25.  This would unquestionably encompass and protect individual ownership of AR-15 rifles, the most popular rifle in the United States today, commonly-owned and used by law abiding citizens for the defense of homes and businesses.  It would also encompass and protect individual ownership of high-capacity semi-automatic handguns, and the high capacity detachable magazines commonly used in those rifles and handguns.

The Fourth Circuit based its holding in Kolbe on its mistaken findings/analysis equating the banned assault weapons with weapons that are most useful in military service (such as fully-automatic M-16 rifles), 849 F.3d at 125-28, 135-38, and on a fundamental misunderstanding of the majority opinion in Heller, id. at 131, 141-43, and erroneously concluded that the core right protected by the Second Amendment does not encompass the banned assault weapons and high capacity magazines.  Id. at 130-38.  

The court’s basic premise, that the banned assault weapons are even more lethal than the fully-automatic M-16 rifle, and are most useful in military service, is absurd on its face.  An intellectually-honest analysis would inevitably and logically ask – as four dissenting judges did in Kolbe – if the AR-15 is even more lethal than the M-16, why doesn’t our military routinely carry AR-15s into combat.9  Confronted with precisely that question by the dissenters’ opinion, id. at 158-59, the Kolbe majority essentially ducked the issue, and reiterated its result-oriented finding that because the AR-15 looks like an M-16, the AR-15 and other similar semi-automatics must be “most useful” as military weapons.  Id. at 143-44.

The Kolbe court also badly misread Heller’s discussion of which types of firearms are and are not protected by the Second Amendment.  Heller explains that the firearms intended to be protected by the Second Amendment were “those in common use at the time.”  554 U.S. at 624, quoting United States v. Miller, 307 U.S. 174, 179 (1939) (which excluded from Second Amendment protection short-barreled shotguns).  Heller explained that “[i]n the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same[,]” which of course refers to the single-shot, flintlock rifles and pistols commonly owned and used by individual citizens, the militia, and the 18th century military.  554 U.S. at 624-25, quoting State v. Kessler, 289 Ore. 359, 368, 614 P.2d 94, 98 (1980).

In addition, Heller explained that rights protected by the Constitution are construed by the Court to encompass technologically-improved versions of the colonists’ firearms:  “Just as the First Amendment protects modern forms of communications, . . . and the Fourth Amendment applies to modern forms of search, . . . the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”  Heller, 554 U.S. at 583 (citations omitted).  The Court thereby indicated that modern single-shot rifles and pistols (even those with engineering advancements that improve their rate of fire, like the AR-15) are protected by the amendment, so long as they are possessed and in common use by law-abiding citizens for lawful purposes.  Id. at 624-25.  As the Court cogently observed in Heller, “that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface.”  Id.

Heller also indicates that dangerous and unusual weapons not typically possessed by law-abiding citizens for lawful purposes are not protected by the Second Amendment, id. at 625, 627, referring to short-barreled shotguns as an example, id. at 625, and to the M-16, a fully-automatic rifle, as a possible example, id. at 627.

Justice Scalia’s explanation in Heller of what types of firearms are covered by the Second Amendment may be open to attack for not being quite as well-refined and articulate as the rest of his opinion for the Court.  Nonetheless, the four dissenting judges in Kolbe understood and were able to reiterate it very well.10 Taken together, Justice Scalia’s pronouncements in Heller indicate that, if anything, single-shot, semi-automatic rifles and pistols are indeed protected by the Second Amendment, because they are small arms in common use for lawful purposes such as self-defense and, like the single-shot, flintlock rifles and pistols of colonial times, are needed by the citizenry to protect our fundamental, constitutional freedoms against an overreaching, tyrannical government.

The Kolbe court’s finding that the AR-15 is most useful for military purposes, and its misreading of Heller’s explanation of which firearms are and are not protected by the Second Amendment, completely undermine its constitutional analysis.  Using the Kolbe court’s reasoning, one would have to conclude that the Second Amendment does not even encompass the single-shot, flintlock rifles and pistols commonly owned and used by 18th century Americans, because at the time the amendment was passed, those very same weapons were the most lethal small arms available, and thus were most useful in military service.  To quote Justice Scalia in Heller, grotesque.

Moreover, even taking the Fourth Circuit’s description of the AR-15’s capabilities as accurate, the Kolbe court also completely ignored citizens’ critical need for such arms to resist government tyranny if the constitutional order breaks down – and thereby ignored the Maryland statute’s serious burden on the core right protected by the Second Amendment.  Id. at 126-28, 135-39, 141-45.  This error (failing to recognize the statute’s burden on the core right protected by the Second Amendment) is also fatal to the Kolbe court’s constitutional analysis.11

The Supreme Court’s refusal to grant certiorari and hear an appeal from the erroneous decision in Kolbe presents another situation that warrants prompt correction.  One would hope (if not expect) that that the Supreme Court, with its new five-justice conservative majority, will also take this issue up as soon as it is confronted with another assault weapons ban case that flies in the face of the Second Amendment and Heller.

Conclusion

The circuit 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.  

 

 

Send us your questions, comments, and concerns. We might even answer your question in our next blog! 

 

Don’t worry, we won’t tell anyone it was you.

Endnotes

  1. Justice Scalia observed that the right to keep and bear arms historically did not include a right to keep and carry any weapon whatsoever, in any manner whatsoever, for any purpose whatsoever.  554 U.S. at 626. For example, he cited as an example holdings made by some 19th century courts that prohibitions on concealed carry were permissible under the Second Amendment.  Id.  In addition, he affirmed the constitutionality of longstanding prohibitions on possession of firearms by felons and the mentally ill, as well as laws forbidding carry in sensitive places (such as schools and government buildings), or regulating the commercial sale of arms.  Id. at 626-27.  He cautioned that he was not undertaking an exhaustive historical analysis of the full scope of the Second Amendment, id. at 626, perhaps believing that his pro forma disclaimer would prevent anti-gunners from sooner or later seizing upon his examples in a relentless effort to limit the right to keep and bear arms.  In doing so without expressly questioning the constitutional validity of any of his historical examples, he foolishly ignored the plain language of the Second Amendment and the two most important purposes behind it – to enable individual citizens to defend themselves against tyrannical government and against deadly force personal attacks – and gratuitously fueled efforts to gut the Second Amendment.  In addition, Justice Scalia observed that the sorts of weapons protected by the Second Amendment were those “in common use at the time.” Id. at 624-25, 627.  While he attempted to put the latter issue to rest elsewhere in his opinion, id. at 582, his loosely-worded observation that dangerous and unusual weapons such as the military’s M-16 rifle might not be protected, id. at 627, opened the door to gun grabbers’ arguments that the amendment does not protect ordinary citizens’ possession of so-called assault weapons. Return to reading

  2. That the framers’ concern was fully justified then and remains so today is amply demonstrated by comments from today’s anti-Second Amendment, gun-grabbing left.  While it may sound incredible to sane minds that a congressman would make such a statement, on November 16, 2018, California Congressman Eric Swalwell (D) actually warned that the United States government would use nuclear weapons against its own citizens if they were to resist proposed legislation confiscating their arms.(https://dailycaller.com/2018/11/16/swalwell-gun-owners-nukes/) Tyrannical, terroristic threats like the one made by Congressman Swalwell are one of the main reasons why the framers included the Second Amendment in the Constitution and worded it in absolute terms. Return to reading

  3. In many areas of constitutional law, laws or regulations that impose upon or infringe constitutional rights are subject to one of three legal tests that are more or less stringent depending on the right and the burden/restriction in question:  (i) rational basis review requires the challenged law to bear a rational link to a legitimate public interest; (ii) intermediate scrutiny requires a substantial link to an important public interest; and (iii) strict scrutiny demands that a law be narrowly tailored to a compelling public interest.  See generally Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 U.C.L.A. L. Rev. 1267 (2007).  If the appropriate test is met, the law is considered to be constitutional; if not, the law will be struck.

    In Heller, the Supreme Court held that rational basis review was inappropriate to determine the extent to which a legislature may regulate a specific, constitutionally-enumerated right, such as the right to keep and bear arms.  554 U.S. at 628 n. 27. Post-Heller, intermediate scrutiny has often been used by anti-gun judges to uphold laws restricting the right to keep and bear arms. Return to reading

  4. In Peruta v. City of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc), the Ninth Circuit upheld the constitutionality of a good reason licensing scheme for concealed carry in California, but without applying intermediate scrutiny.  In Peterson v. Martinez, 707 F.3d 1187 (10th Cir. 2013), the Tenth Circuit upheld a provision in Colorado’s concealed carry licensing scheme that limited the issuance of permits to state residents, also without applying intermediate scrutiny.  These courts did so because, based on their historical analysis of the Second Amendment, they held that the amendment does not protect, to any degree, the right of the general public to carry concealed firearms in public. Peruta, 824 F.3d at 929-39, 942; Peterson, 707 F.3d at 1201, 1209-12.

    With the First Circuit decision in Gould (which covers Massachusetts, Maine, New Hampshire, Rhode Island, and Puerto Rico), the Second Circuit’s decision in Kachalsky (which covers New York, Connecticut, and Vermont), the Third Circuit’s decision in Drake (which covers Pennsylvania, Delaware, and New Jersey), the Fourth Circuit’s decision in Woollard (which covers Virginia, West Virginia, Maryland, North Carolina, and South Carolina), the Ninth Circuit’s decision in Peruta (which covers California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Alaska, Hawaii, and Guam), and the Tenth Circuit’s decision in Peterson (which covers Colorado, New Mexico, and Kansas), there are now 27 states living with various limits or prohibitions on carrying firearms outside the home, or the potential for such restrictions to be passed by their legislatures. Return to reading

  5. The importance of the right to carry in public – whether for armed resistance to government tyranny, or for personal self-defense – is further emphasized by the plain, strongly-worded language of the amendment’s operative clauseReturn to reading

  6. The D.C. Code did not permit open carry at all.  Id. at 655. Return to reading 

  7. McDonald extended the Heller decision to cover the individual states, re-affirmed that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and stressed the centrality of self-defense to the core right protected by the Second Amendment.  561 U.S. at 749-50, 767-68, 784-85, 787.  Return to reading

  8. The gunfight in Young still isn’t over.  The State of Hawaii has filed a petition for the case to be re-heard by the full Ninth Circuit sitting en banc.  The full court (which is notoriously opposed to the Second Amendment) is likely to grant the petition for re-hearing and can be expected to reverse the 3-judge panel’s decision.  Return to reading

  9. The answer is simple – the M-16 provides our troops with both semi-automatic and fully-automatic settings.  Even if, as the Kolbe majority believes, semi-automatic fire is more lethal than fully-automatic fire, the M-16 provides both capabilities, while the AR-15 does not.  It remains a mystery how the AR-15’s limited functionality as a single-shot, semi-automatic rifle makes it more useful as a military weapon than as a weapon for self-defense, or more importantly, as an easy-to-use firearm that would enable an armed citizenry to at least have some capability to defend itself against its own government’s tyranny.  Return to reading

  10. As the dissenters explained:

    [T]he Second Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.” . . . By contrast, “the carrying of ‘dangerous and unusual weapons’” has been prohibited as a matter of “historical tradition.” . . . If a weapon is one “typically possessed by law-abiding citizens for lawful purposes,” . . . then it cannot also be a “dangerous and unusual” weapon in a constitutional sense, [Heller, 554 U.S.] at 627 (weapons “in common use at the time” did not include “dangerous and unusual weapons). . . .  Indeed, Heller refers to “dangerous and unusual” conjunctively, so that even a “dangerous” weapon enjoys constitutional protection if it is widely held for lawful purposes. See [Caetano v. Massachusetts, 136 S.Ct. 1027, 1031 (2016 (per curiam)] (explaining that the dangerous and unusual test “is a conjunctive test:  A weapon may not be banned unless it is both dangerous and unusual”) (Alito, J., concurring).The significance of this rule is that “the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.”  . . . Simply put, if the firearm in question is commonly possessed for lawful purposes, it falls within the protection of the Second Amendment. . . .

    Kolbe, 849 F.3d at 152-53 (Traxler, C.J., dissenting) (some citations omitted). Return to reading

  11. It bears note that the Kolbe court’s approach would largely accomplish one of progressives’ and gun grabbers’ favorite agenda items – to make it considerably more difficult, if not impossible, for armed citizens to effectively resist their own government’s tyranny – in direct contravention of the framers’ intent. Return to reading

All Rights Reserved Copyright 2019 Stephen L. Sulzer

3 thoughts on “LOOK OUT BELOW –

    • Thanks for your comment Andy. It is that bad, but don’t lose hope. The Supremes have granted cert in a case that could provide a vehicle for the Court to improve things. An update will be posted to this blog later this week that will talk more about it.
      NFLI

  • Your arguments become relevant and important given the bills just
    intro’d by the Democrats today and driven by the knee jerk mentality
    that seems to assail us today. Well thought out and written.

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