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EXCLUSIVE: Supreme Court Ducks

By David Codrea

“The US Supreme Court declined [on November 28, 2011] to take up a potentially important gun rights case examining whether a federal regulation banning loaded firearms from vehicles in a government park violated the constitutional right to keep and bear arms,” The Christian Science Monitor reported.

The case was Sean Masciandaro v. United States of America, and it centered on a Virginia man with an expired concealed carry permit convicted and fined $150 for having a loaded handgun in his car while parked in a national park.

The case presented two fundamental questions:

“I. Does the Second Amendment to the United States Constitution protect a right to possess and carry a firearm for self-defense outside the home?

“II. If there is a Second Amendment right to possess and carry a firearm for self-defense outside the home, is it constitutional to prohibit law-abiding citizens’ possession and carrying of loaded weapons in motor vehicles while on National Park Service land?”

They are important questions to have answered, as earlier SCOTUS decisions in the Heller and McDonald cases respectively ruled a right to possess a firearm in the home, and that this right extended beyond federal enclaves and included the states. The Second Amendment Foundation filed an amicus brief on behalf of Masciandaro written by Alan Gura, the attorney behind those landmark decisions.

But the questions and the legal and Constitutional reasons behind them were dismissed without comment as the High Court declined to hear the case. Importantly, this follows by less than two months a similar denial to hear the case of Williams v Maryland, which also sought a ruling that the Second Amendment applies to carrying weapons in public for personal self defense.

What type of legal trickery is this, or is it perhaps just judicial cowardice? How can the Constitution refer to the right of the people to keep and bear arms, and yet prohibitions against carrying are allowed to stand without comment, while citizens are in danger of being prosecuted and convicted without hope of recourse?

And if the Supreme Court refuses to hear such straightforward appeals, what chance do gun owners have at obtaining relief from so-called “assault weapons” bans, prohibitions on private sales, and requirements to register firearms?

It defies common sense, or at least a basic understanding of the definition of words like “shall not be infringed.” But it also points to the danger of relying on the courts to be the final arbiter of our rights. All they need do is refuse to hear an appeal, and just about any gun case out there will be dead in the water.

Back in 2005, I wrote the following on my WarOnGuns blog, predicting what the likely outcome of a Second Amendment case would be:
“I believe the court will not dare say there is no individual rkba. But if they find there is one, it will be so heavily burdened with ‘reasonable restrictions’ as to ensure the status quo. They’ll never admit the truth unless someone, that would be us, has enough power to compel them.”

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  1. The only way to get them to answer that question is perhaps to create a petition demanding that SCOTUS answer that question. Otherwise it will never be answered. Simply because they know without question that there is only one answer that can be provided. Once that answer is given, about 99% of the so-called gun control law that are on the books would be either immediately challenged for their Constitutionality, or they would by default be nullified.

    I my self do believe in gun control. So long as the only ones it affects are those that choose to go out and commit crimes like murder, armed robbery, kidnapping, and other major crimes.

    On a side note, people that care about their safety should read up on the SCOTUS case of DeShaney v. Winnebago County Department of Social Services. As it tells people Whom it is that has a duty to protect ones self from criminal harm. Here is a clue.

    In its landmark decision of DeShaney v. Winnebago County Department of Social Services, the US Supreme Court declared that the Constitution does not impose a duty on the state and local governments to protect the citizens from criminal harm.

    If they do not have a duty to protect you, I wonder who does. You cant adequately protect yourself from crime if you have on key component taken away from you. It’s akin to trying to repair an engine without a socket set or wrench set. Try doing that without those tools.

    Too bad we have justices in the high court that lack the balls to answer the tough questions. Cowards are what tear countries apart.

    • The Supreme Court’s choices seem rather arcane, but they reflect the limited docket for the Court, the political make-up of the bench (with Obama’s picks on the Court, it will be harder to get these cases heard), as well as whether the Court thinks the case will make good law. It may be that the Court is waiting for a better case to use to try this issue, this is often the case. There are also issues of what law should be left solely for the States to decide, and what should be national. You begin to see how complicated this can get. It will come up again, and eventually it will be heard.

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