NRA Tells Supreme Court Open Carry is Perverse

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There is a moral putrefaction oozing out from the core of the so called gun-rights community. Its leadership and many, if not most, of its supporters believe that not getting caught in a lie is the same thing as telling the truth.

In decades past this was the province of totalitarian regimes. In NAZI Germany it was The Big Lie. In the Soviet Union everything was a lie. In the United States there have always been liars, thieves and crooks but they either hid in the shadows or lived on the fringes of society. In 1950’s America, it was the “Better Red Than Dead” crowd which was followed by beatniks, hippies and cults like the Manson Family and Jim Jones, the leader of the Peoples Temple of San Francisco which ended with a mass suicide in Guyana.

Today we live in a world where insanity has become the mainstream and it is the rational men and women who now find themselves on the fringes of society. Not even Ayn Rand was able to predict what the world would become in her prophetic novels, The Fountainhead and Atlas Shrugged.

In 2008 the United States Supreme Court conducted its first in-depth analysis of the Second Amendment. The majority opinion, written by the late Justice Antonin Scalia, parsed the Second Amendment word by word. Justice Scalia’s historical analysis began with the 1689 English Bill of Rights and centered around what the Framers of the Second Amendment understood the right to mean when it was enacted in 1791 and what the Framers of the Fourteenth Amendment understood the right to mean as it existed in 1868, the two relevant dates when conducting a Constitutional inquiry. Justice Scalia also looked to how the 19th century state courts interpreted the Second Amendment and the Right to Keep and Bear Arms under the state analogs at the time.

With one exception, not mentioned in his decision, the courts invariably held that concealed carry was not a right. A few courts had held that the right was limited to defending The People against tyrants but even those decisions held that there was no right to carry a weapon concealed in public.

None of them held that Open Carry could be banned in favor of Concealed Carry, not one.

This is not surprising given that when the Second Amendment was enacted in 1791, the use of a concealed weapon to kill someone was murder and not subject to pardon (you were hanged) whereas the use of an openly carried weapon could be pardoned or punished as manslaughter, provided one gave his opponent the opportunity to defend himself.

By 1868, when the Fourteenth Amendment was adopted, the mere carriage of a weapon concealed in public was a crime, even if one’s life had been threatened and the concealed weapon was never used.

Justice Scalia concluded that:

“[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809

US Supreme Court 2010

The four dissenting justices agreed with the five justices in the majority that there is no right to carry a weapon concealed in public under the Second Amendment.

Two years later, the US Supreme Court in a 5-4 decision held that the Second Amendment right Justice Scalia defined in the Heller decision two years earlier applied to all state and local governments via the 14th Amendment of the US Constitution.

On January 12, 2017, the NRA filed a cert petition with the Supreme Court asking the Court to overturn the decision of an eleven judge panel of the 9th circuit court of appeals in the case of Peruta v. San Diego, a decision which adhered to the US Supreme Court decision in District of Columbia v. Heller as well as an 1897 decision of the US Supreme Court which said:

“[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.

The NRA’s cert petition will be denied and not just because the en banc (eleven judge panel) Peruta decision does not conflict with any US Supreme Court decision but because the en banc Peruta decision does not conflict with any other Federal circuit court of appeals or any other state high court decision which has had a concealed carry case come before it.

It is rare that the Supreme Court grants a cert petition when there is no circuit split and the only time it grants a cert petition in which there is neither a circuit split nor a conflict with its prior holdings is to overturn a prior holding of the US Supreme Court.

It takes the vote of four justices to grant a cert petition to review a case. The Supreme Court has turned down every concealed carry cert petition and the only Second Amendment cert petition which it has granted since 2010 was a case where the Massachusetts high court unanimously held that the Second Amendment was limited to arms which existed in 1791.

The US Supreme Court unanimously slapped down that decision of the Massachusetts high court.

You can read the NRA’s cert petition at my website. It is over 300 pages long and so you will likely need to download it before attempting to read it. Portable devices don’t seem to have the capacity to allow one to view pdf files of this size online.

Most of the pages are attachments of the lower court decisions. Excluding the attachments, the petition is just 46 pages in length.

The remarkable thing about those 46 pages is that nearly every line is a lie. The NRA is telling the Supreme Court that when it said that Open Carry is the right guaranteed by the Constitution and that concealed carry is NOT a Second Amendment right, what the Court really said in the Heller decision was that Open Carry can be banned in favor of concealed carry.

There are a lot of people who want to do just that.

These are the same people who think not getting caught in a lie is the same thing as telling the truth.

God help us if there is ever a majority of the Supreme Court who feel the same way.