Gun owner elation after victories in the Heller and McDonald cases of years past has dimmed considerably in 2014, with some high profile decisions leaving just how many infringements the courts intend to tolerate up in the air. And now, a decision in Colorado upholding post-Newtown gun restrictions, leaves many wondering if this will be a case the Supreme Court affirms or dodges, assuming it eventually makes its way to them.
They’ve already ruled against gun rights this year, and ducked making decisions a few times.
SCOTUS upheld the convictions of former police officer Bruce Abramski on two federal firearms violations. He put himself down as the purchaser on the Form 4473 transfer record when he intended to buy a gun for his uncle, who had already given him a check to pay for a Glock 19 so he could take advantage of Abramski’s police discount. Even though the uncle was not a prohibited person, the High Court, in a 5 to 4 decision, reaffirmed the lower court ruling that found him guilty of making false statements material to the lawfulness of the sale and regarding information required to be kept on file by an FFL.
They also denied cert, that is, declined to hear an appeal, on a New Jersey case challenging the state’s practically unattainable requirement to prove “need” as a way to avoid issuing carry permits (that divided Third Circuit panel is in conflict with a California case, where a Ninth Circuit panel had ruled similar San Diego County restrictions unconstitutional). It also turned its back on a case challenging the State of Texas denying the right to carry to law-abiding 18 to 20 year olds, and on a challenge to a 1968 federal law restricting sales of handguns by FFLs to those 21 and older. That basically means bad laws, or at least laws uncompromising gun-rights advocates consider bad, remain in force in jurisdictions where they have been upheld at the appeals level.
Additionally, attorney Allen Thompson, writing for the Prince Law Office, P.C. blog, noted “The Supreme Court of the United States has decided not to hear several important firearms rights cases this year, setting aside such issues as: whether a concealed carry permit-holder residing at a house creates an exigent circumstance in which police do not have to announce their presence, and whether a 10-round magazine, deemed protected by the Second Amendment, can be prohibited as a safety measure.”
Also denied for review was a case where prohibitions against purchasing firearms by residents of other states were challenged.
With that as background, enter Colorado Outfitters Association et al v. Hickenlooper, a challenge filed by organizations, businesses and numerous sheriffs to newly-enacted edicts banning magazines that hold more than 15 rounds, and to a requirement that background checks be performed for any gun transfer lasting more than 72 hours.
In this case, US District Court Judge Marcia Krieger surprised gun rights proponents who had assumed a George W. Bush appointee would be supportive of the Second Amendment. That should be an object lesson for activists to pay attention to nominations coming up before the Senate for approval. Disappointingly, she ruled both edicts were constitutional and did not infringe on the right of individuals to keep and bear arms.
“Until 2008, most courts did not construe the Second Amendment to protect an individual’s right to possess and use firearms,” she wrote in an opinion that reeked of ignorance not only of founding intent, but of the law. Krieger evidently never heard of the Dred Scott decision, when Chief Justice Taney observed that if African Americans were recognized as citizens, “it would give to persons of the negro race … full liberty … to keep and carry arms wherever they went.”
Having also evidently never been in a situation where she had to defend herself against multiple assailants, or just one who will not cooperate with a determined armed defender, Krieger declared limiting magazine sizes does not impede the ability to protect one’s self. And apparently needing to leave a gun for specialty repairs and upgrades is also beyond her experience, as she ventured that someone doing maintenance could not prove a credible threat that he would be prosecuted for not undergoing a background check when exceeding the 72-hour limit.
Most surprisingly, Krieger ruled the sheriffs had no standing to sue—and that was after denying them the right to sue in their official capacities and requiring them to sue as private citizens. “Catch-22” comes to mind.
“A court does not act as a super-legislature to determine the wisdom or workability of the legislation,” Krieger said, defensive of her opinion but obviously cognizant of its ridiculous and offensive implications. “A law may be constitutional, but nevertheless foolish, ineffective or cumbersome to enforce.”
Aiming to prove her wrong, the sheriffs, led by John Cooke of Weld County, aren’t quitting without a fight.
Fight’s Not Over
“While we respect the Judge’s ruling today, we believe that it is plainly wrong on the law and on the facts,” they said on ColoradoGunCase.com, a website sponsored by the Independence Institute. “We will take this case to the Tenth Circuit Court of Appeals, and if necessary, to the United States Supreme Court.
“Today was only the first round in the case, not the last. Otis McDonald, Dick Heller, and other Second Amendment plaintiffs didn’t win their first rounds in the district court,” the sheriffs explained. “They did win at the end of their appeals. We are ready to present our case to the higher court that will make the final decision.
“We will continue the fight, and we look forward to presenting our case to the higher court,” the group pledged.
That leaves the question of what that highest court will do if Krieger isn’t overturned at the appellate level, or if she is, what conflicts remain between circuits due to New York’s SAFE Act.
Would the High Court hear a challenge or duck it? If it did, how would it rule? Would it dare tell American gun owners bans on a class of firearms and magazines suitable for militia service are constitutional? Would it dare tell the ruling elites the common people have the right to keep and bear arms capable of counterbalancing what would otherwise be a state monopoly of violence?
SCOTUS has been ducking that issue for a long time, along with that most inconvenient of clauses, “shall not be infringed.” They bought some time with prior rulings that allowed for enough “reasonable restrictions” and “compelling state interests” to give a nod to individual rights while not overturning the status quo. But as for full-blown recognition for what Tench Coxe, a delegate for Pennsylvania to the Continental Congress, advocated, that’s something they just won’t cede, because those who have power rarely voluntarily share it.
“Congress have no power to disarm the militia,” Coxe wrote in The Pennsylvania Gazette, back before newspapers had become havens for screaming hoplophobes and enuretic Fourth Estate Fifth Columnists. “Their swords, and every other terrible implement of the soldier, are the birthright of an American … the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
The courts and the other branches of government will never concede to that power sharing arrangement, unless someone, that would be us, compels them to.
By David Codrea