Last week, during his confirmation hearing to become a justice of the United States Supreme Court, Judge Kavanaugh was questioned about the Second Amendment by California Senator Feinstein (D-CA) and by Connecticut Senator Richard Blumenthal (D-CT).
The Very Patient Judge Kavanaugh
Judge Kavanaugh patiently explained to the two left wing Democrat Senators that the US Supreme Court has said in two separate opinions that the Second Amendment right is not unlimited. The Supreme Court has said there is certain conduct, people and places which fall outside the scope of the Second Amendment right.
The first of these cited by Judge Kavanaugh was the fact that there is no right to concealed carry under the Second Amendment.
He also said that felons and the mentally ill do not have a right to keep and bear arms either. And, he explained, there are some arms, historically referred to as “dangerous and unusual weapons” which likewise fall outside the scope of the Second Amendment protection.
In Judge Kavanaugh’s view, the United States Supreme Court decisions in District of Columbia v. Heller and McDonald v. City of Chicago leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.
Judge Kavanaugh has written that the scope of the Second Amendment right is thus determined by “historical justifications.”
Judge Kavanaugh wrote that “Tradition (that is, post-ratification history) also matters because examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification is a ‘critical tool of constitutional interpretation.'”
Fatal to any claim that concealed carry is a Second Amendment right, Judge Kavanaugh wrote this:
“As to regulations on the sale, possession, or use of guns, Heller similarly said the government may continue to impose regulations that are traditional, ‘longstanding’ regulations in the United States. In McDonald, the Court reiterated that ‘longstanding regulatory measures’ are permissible. Importantly, the Heller Court listed several examples of such longstanding (and therefore constitutionally permissible) regulations, such as laws against concealed carry and laws prohibiting possession of guns by felons. The Court stated that analysis of whether other gun regulations are permissible must be based on their ‘historical justifications.'”
“In disapproving D.C.’s ban on handguns, in approving a ban on machine guns, and in approving longstanding regulations such as concealed-carry and felon-in-possession laws, Heller established that the scope of the Second Amendment right – and thus the constitutionality of gun bans and regulations – is determined by reference to text, history, and tradition.”
What the Second Amendment Says
The text of the Second Amendment says that we, The People, have a right to keep and bear arms. History and tradition, both before and after the ratification of the Second Amendment, takes concealed carry outside of the scope of the Second Amendment right.
This should not surprise anyone. The text of the First Amendment says that we have the freedom to speak our minds and to print what we think but that freedom did not extend to slander, libel or to making death threats.
Neither the text of the First or Second Amendments, or any amendment in the Bill of Rights, lists what the right excludes because it was understood at the time of the ratification of the Bill of Rights by the people who wrote the Bill of Rights and by the people who voted to enact the Bill of Rights that there were limits to these rights.
The Founding Fathers, after all, weren’t morons.
The historical justifications for prohibiting concealed carry is because people who carried concealed weapons did so, in the words of the Heller decision, for “secret advantages and unmanly assassinations.”
That is just as true today as it was before and after the ratification of the Second Amendment. Why do people today who carry concealed say they do it? They say it gives them a secret/tactical advantage over others. It has been the history and tradition of the United States that carrying a weapon for immoral purposes, such as secret/tactical advantage over others falls outside the scope of lawful self-defense, even before there was a United States.
The Big Lie
It is not the fault of the Framers of the Second Amendment that this generation is devoid of morality.
In the ten years since the Heller decision was published the so-called gun-rights lawyers have been chanting this generation’s Big Lie. Namely, that legislators get to chose between concealed and Open Carry and therefore government gets to ban Open Carry and people must be issued concealed carry permits.
Curiously, they have made this argument in states like New Jersey and Maryland where the permits do not differentiate between concealed and Open Carry. Anyone issued a license to carry a handgun in these two states can carry the handgun openly or concealed, and yet they argued that states can ban Open Carry in favor of concealed carry in states which banned neither.
On July 26th, 2018, two days after a three-judge panel of the 9th circuit court of appeals published a decision which held that the Second Amendment right to keep and bear arms at a minimum protects the right to openly carry firearms in public, the left-coast lawyer for the National Rifle Association, Chuck Michel, went on the NRA program with the Dickensian name “Stinchfield” and repeated the Big Lie, that states can ban Open Carry in favor of concealed carry.
Like a deer staring into the headlights of the oncoming elevation of Judge Kavanaugh to a seat on the US Supreme Court, the NRA lawyer rambled on about why he is right. Never mind that for him to be right entails that all nine justices on the Supreme Court were wrong in the Heller decision as the four justices in the minority agreed with the five justices in the majority that concealed carry is not a right.
NRA Lawyer Said Eleven Judges Are Wrong
According to the NRA lawyer, Chuck Michel, the eleven judge 9th circuit court of appeals en banc panel, which held in the Peruta v. San Diego case that concealed carry is not a Second Amendment right, was wrong.
Why were they wrong? He does not say. However he did say that “most courts have said it is up to the legislature, depending on the circumstances, to adopt … to legislate … and dictate one form of carry over another … ”
“Most courts?” He did not identify any court, let alone most of them which have so held.
In the history of this nation there has been only one court, the Florida Supreme Court last year in a very narrow decision, which held that states can ban Open Carry in favor of concealed carry and the four justices in the majority of that court explicitly rejected the holding of the Supreme Court in Heller that Open Carry is the right guaranteed by the Constitution because, in its view, the US Supreme Court got it wrong.
An important distinction between what the so-called gun-rights lawyers claim and what this lone, outlier court decision held is that these four justices on the Florida Supreme Court did not say that the US Supreme Court said that states can ban Open Carry in favor of concealed carry. What these four Florida, state court justices said is that the US Supreme Court was wrong about Open Carry being the right guaranteed by the Constitution and wrong about concealed carry not being a right.
Florida High Court Said US Supreme Court Is Wrong
Why did the US Supreme Court get it wrong according to the Florida high court? Because a left wing, revisionist writer of a law review article said so.
I kid you not.
Those four justices on the Florida Supreme Court apparently missed the day of judge school where they were taught that the US Supreme Court has the last word on what the Federal Constitution says just as they have the last word on what the Florida State Constitution says.
Unfortunately, Rule 10 of the United States Supreme Court says that it isn’t the job of SCOTUS to correct the errors of the lower courts. Rule 10 says it is the job of the US Supreme Court to resolve splits between the courts on questions of Federal law.
Preparing A Cert For Certain Failure
And since it was an NRA lawyer who filed the cert petition with the US Supreme Court in that case, Norman v. State, it should not surprise you to learn that his cert petition did not even use the word “split.”
Not surprisingly, when a lawyer files a defective cert petition regardless of whether or not it was done intentionally, the cert petition is denied.
The denial of a cert petition does not mean the lower court was right. It means that the US Supreme Court, for whatever reason, did not want to grant the cert petition. Full stop.
Turning back to the NRA’s latest concealed carry lawsuit pending in the 9th circuit court of appeals, Flanagan v. Becerra, the NRA lawyer who appeared on the Stinchfield program, Chuck Michel, recently filed a request for a 30 day extension of time to file his opening brief.
He, unsurprisingly, miscalculated the new date. Not just by one day but by ten days.
Did you know that lawyers in California are not tested on whether or not they can do simple math? Indeed, whereas those of us who took exams heavy in science and math just to be accepted into grad school (notwithstanding the courses in science and math we had to pass in order to graduate), lawyers take a test devoid of science math and logic and are awarded law degrees without ever having to take a single class in math, science or logic.
In any event, one of the clerks of the court corrected his math error for him (or perhaps the NRA lawyer simply did not know what day it was). Regardless, the NRA’s opening brief is now due on October 12, 2018.
I for one am eager to read the NRA’s citations in which “most courts” have said that Open Carry can be banned in favor of concealed carry (or vice versa) because the NRA lawyers certainly didn’t cite a single case in its failed Peruta v. San Diego lawsuit where any court has ever said, in the history of our nation or in the history of English law which governed the Pre-Revolutionary War history of the American Colonies, that Open Carry can be banned in favor of concealed carry.
NRA Has One Case to Cite
This time around, the NRA will have one case to cite. The one from Florida where that court said the US Supreme Court got it wrong.
That citation to the Florida Supreme Court decision in Norman v. State plus 50 cents won’t get the NRA a cup of coffee, let alone shall-issue concealed carry permits in California, which is what its latest lawsuit is all about.
Unlike state courts which get to say whatever they want about Federal law, Federal judges are bound by the decisions of the United States Supreme Court and they are bound by prior panel decisions of this circuit.
Which means that whichever judges are eventually assigned to this latest NRA concealed carry lawsuit, Flanagan v. Becerra, they are bound by the prior en banc decision in Peruta which held that concealed carry is not a right and they are bound by the US Supreme Court decisions in Heller and McDonald, which also said that concealed carry is not a right.
Which means that the NRA loses another concealed carry lawsuit with the only recourse being for them to file a cert petition with a brand new justice sitting on the court.
A brand new justice who has already said that concealed carry is not a right.