By David Codrea
“The justices did not add any new cases to their merits docket for the term, but they did deny review in several high-profile cases,” SCOTUSblog, a website that tracks Supreme Court cases, reported in late November. “Perhaps the most noteworthy denials came in two cases involving gun rights: Kolbe v. Hogan, a challenge to Maryland’s ban on semi-automatic rifles and large-capacity magazines (see Rights Watch “Challenge to a Showdown,” July 2017 issue), and Norman v. Florida, a challenge to the state’s ban on the open carrying of guns in public.”
That means lower court decisions to uphold state bans remain in place. And it’s significant to note the justices declined to hear either case without comment, meaning gun owners are left to speculate on why that is.
Do “conservative” judges who ruled favorably in Heller and McDonald think those rulings have gone far enough? Do any favor expanding Second Amendment recognition and—if so—are they waiting for a retirement or two from their ranks before they deem it safe to move forward? Is the newest justice, Neil Gorsuch, the “Scalia originalist” prominent gun lobby groups assured us he would be? And why does an analysis tracking leftward shifts in the Chief Justice’s judicial ideology over the years lead FiveThirtyEight Politics to ask “Is [John] Roberts A Secret Liberal?”
Beginning with the Florida case, Dale Lee Norman was found guilty of violating the state’s open carry prohibition. The district court upheld that law and the Florida Supreme Court affirmed, holding it did not violate the Second Amendment. The rationale is that’s because concealed carry is an option, albeit one with a prior restraint and a requirement for a permit.
To paraphrase Bill Clinton, that depends upon what the meaning of the word “infringed” is. And so much for the Supreme Court opinion in the infamous Dred Scott case that if a slave or former slave were recognized as a citizen, “It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right… “to keep and carry arms wherever they went.”
It didn’t say how, and curiously, early infringements tolerated at the time discouraged concealed carry.
The Maryland ban not only denied founding intent for the Second Amendment, it reversed it.
“[W]e have not power to extend Second Amendment protections to weapons of war,” Bill Clinton nominee and 4th Circuit Court of Appeals Judge Robert King wrote.
Weapons of war are precisely what “We the People” are entitled to have. That’s why the militia was deemed “necessary to the security of a free State” by the Founders. And Judge King wouldn’t have needed to extend anything. US v. Miller, a case from 1939 already observed a weapon would need to have “some reasonable relationship to the preservation or efficiency of a well regulated militia [or] that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”
While self-defense is unquestionably a benefit, relying on it exclusively in legal arguments allows tyrant wannabes like Maryland’s Democrat Attorney General Brian Frosh to crow, “It ought to be a lesson to all states, and I would hope that they would look at the 4th Circuit’s decision and the tragic events around the country and come to the conclusion that this is a common-sense law.”
And why wouldn’t more Democrat-controlled states now be emboldened to do just that? They’ll find no shortage of courts ready to uphold bans based on the presumption that if you’re allowed “approved” rifles, shotguns and pistols, you don’t “need” a “weapon of war” for everyday self-defense.
What about the first part of the Second Amendment that says “A well regulated militia, being necessary to the security of a free State…”?
It’s still there in the Constitution, including the power of Congress “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”
“[T]he Second Amendment must be read in its entirety,” argued Dr. Edwin Vieira, Jr. in a “friend of the court” brief filed in the Maryland case. “The Amendment’s goal is the security of a free State. It declares ‘[a] well regulated Militia’ to be ‘necessary’ for that purpose. And to guarantee that such Militia exist, it commands that ‘the right of the people to keep and bear Arms, shall not be infringed.’ Howsoever that ‘right’ embraces ‘Arms’ convenient for an individual’s self-defense, it unquestionably protects all ‘Arms’ useful for ‘the people[’s]’ collective defense of ‘a free State’ through the efforts of ‘[a] well regulated Militia.’ That is the Amendment’s central concern. For all citizens are duty-bound to defend their polity.”
Per his online bio, Vieira “holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School). For more than 30 years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions…”
In short, he knows what he’s talking about. And he knows that “reliance on a permanent private market for firearms guaranteed that most militiamen, through their own efforts, could always obtain firearms suitable for both collective and individual self-defense, and forestalled tyranny by precluding rogue public officials from monopolizing the production, distribution, and possession of firearms.”
There are plenty of reasons for deliberate indifference on the part of Congress and the states that enable them to get away with ignoring their militia mandates. But foremost, I believe, is that American citizens have allowed ignorance, apathy, laziness and outright hostility to reign. If we really wanted it, our representatives would heed our demands or else find themselves out of office.
If we did reinstate such a system, what type of popular support would it receive? Alexander Hamilton argued in Federalist 29 about what it would take to acquire the “well regulated” capabilities of professional soldiers. In short, it “would be a real grievance to the people, and a serious public inconvenience and loss.
“Little more can reasonably be aimed at, with respect to the people at large than to have them properly armed and equipped,” he finished out his thought.
“Properly armed and equipped” for what? Not duck hunting, that’s for sure.
Hamilton did not invalidate the need for the militia—he simply acknowledged people had lives to live, and if needed, had to show up armed and ready to follow orders. And if you didn’t like it, you couldn’t just pack up and go home. That’s where the “discipline” part comes in. Are you ready for that?
If we really believe in the Second Amendment we need to be. “Modern sporting rifles” notwithstanding, we can never forget that “weapons of war” and “every terrible implement of the soldier” are what Continental Congress delegate Tench Coxe called “the birthright of Americans.”