The Second Amendment – Checkmate in Four Moves?

When did deception, cunning, guile, conceit and lying become synonymous with intelligence? Worse, when did these become synonymous with virtue?

The first three are innate to even the most primitive of predators which can be found everywhere on the planet. Conceit and lying are unique to the human species. Only humans are capable of admiring their ability to lie and to be apex predators of this planet.

Do you think the spider, after ensnaring its prey in its web, basks in self-admiration? It does not. It secures its prey, feeds, repairs its nest and waits in the corner for its next hapless victim to fly into its web.

First In-depth Second Amendment Examination

On June 26, 2008, the Supreme Court of the United States published its first in-depth examination of the Second Amendment written by the late Supreme Court Justice Antonin Scalia – District of Columbia v. Heller. In a 5-4 decision, the High Court held that the Second Amendment protects the right of the individual to use arms for self-defense, self-defense being the central component of the Second Amendment right.

But the majority of the Court also held that the right is not unlimited. The Court said that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

The first limitation the Court placed on the Second Amendment right is that the right does not extend to unlawful or unjustifiable purposes. For example, there is no Second Amendment right to commit armed robbery. The second limitation the Court placed on the Second Amendment right is the carrying of weapons concealed in public. There is no right to carry a weapon concealed in public according to the Court with the possible exception of travelers while actually on a journey. Another limitation the Court placed on the Second Amendment is that there are some weapons which fall outside the scope of the Second Amendment.

second amendment shirt
Second Amendment checkmate.

We know that the Second Amendment protects handguns, rifles and shotguns but the Court did not say whether or not that protection extends to machine-guns or even hand-held rocket launchers which can bring down an aircraft. We know this because the author of the Heller decision (Justice Scalia) said so in an interview several years after his decision was published. We know from the Heller decision that the Second Amendment does not protect “dangerous and unusual weapons” but what we don’t know from the Heller decision is whether or not machine-guns and hand-held rocket launchers are “dangerous and unusual weapons.” We do know that Justices Scalia and Thomas believed that semi-automatic rifles such as the AR-15 are protected by the Second Amendment. They said so in a dissent to the denial of a cert petition in a case which sought to overturn a ban on these firearms in Highland Park Illinois.

Not Covered By Heller Decision

There were several categories of laws which the Court explicitly said were not affected by the Heller decision:

  1. Possession of firearms by felons and the mentally ill
  2. Laws forbidding the carrying of firearms in what the Court called “sensitive places” such as schools and government buildings
  3. Laws imposing conditions and qualifications on the commercial sale of arms.

Seven years, seven months and seventeen days after the Heller decision was published, Justice Scalia was at a dinner party, the night before he was to go hunting. He said he was not feeling well and excused himself. Late the following morning he was found dead in bed.

So what did the so called gun-rights groups do in the seven years, seven months and seventeen days between the Heller decision being published and the death of Justice Scalia? They chose the path of deception, cunning, guile, conceit and lying. A path which has led the Second Amendment to the precipice of its destruction and a path the so called gun-rights groups and attorneys have no regrets in taking.

Squandered Opportunities

The so called gun-rights groups and their lawyers squandered the opportunity to solidify the Second Amendment right in the courts by saying that Justice Scalia and the 5-4 majority in the Heller decision were wrong when the court held that Open Carry is the right guaranteed by the Second Amendment. These groups and their lawyers argued instead that Open Carry can be banned in favor of government-issued permission slips to carry weapons concealed. They lost every case. They also brought other Federal lawsuits challenging the other “presumptively lawful” prohibitions and restrictions on the Second Amendment. They lost those cases as well.

With each case lost it gave the various Federal Courts of Appeal the opportunity to cut away at the Second Amendment right in decisions which are binding on all lower courts in their district and all state courts in their district.

The Second Amendment says that the right of the people to keep and bear arms “shall not be infringed.” The Second Amendment is unique in this regard. All that is required to infringe on the Second Amendment right is to enact a law which encroaches on the Second Amendment right. A law which merely gets close to touching the Second Amendment right is an encroachment and is therefore unconstitutional by the plain text reading of the Second Amendment right.

Some Federal Circuits, like the 2nd and 3rd, have decided that all gun laws are by default constitutional unless the challenged law places what the court deems to be a “substantial burden” on the Second Amendment right and even then a law which substantially burdens the Second Amendment right can still be constitutional if in the eyes of the court the government had a sufficiently good reason to enact the law.

The remaining Federal Circuits have created a two-step test of constitutionality. Step One asks whether or not the challenged law burdens conduct which falls within the scope of the Second Amendment as it was historically understood and if so, Step Two of the test analyses the severity of the burden of the law on the Second Amendment right with more severe burdens requiring a better reason given by the government for enacting the law.

Not a single court, anywhere, has recognized that the Second Amendment is a right which shall not be infringed.

There have been hundreds of other decisions in cases brought by people, mostly convicted felons, who raised frivolous arguments such as they have a Second Amendment right to bear arms while engaged in criminal activity such as drug dealing. And of course there have been a few cases where people committed to mental institutions claim they have a Second Amendment right to carry firearms.

Four Inevitable Supreme Court Changes

There are four justices whose inevitable replacements will decide the fate of the Second Amendment for a generation, perhaps forever.

    Justice Scalia whose death has created a vacancy

    Justice Ginsburg whose advanced age and poor health will almost certainly see her seat vacant by the end of the first term of whomever is elected President this November

    Justice Kennedy who turns 80 this July

    Justice Breyer who turns 78 this August

Two of these Justices held that the Second Amendment is a fundamental, individual right unconnected with service in a militia (Scalia and Kennedy) and two held that the Second Amendment is not an individual right (Ginsburg and Breyer).

A President can nominate someone to the Supreme Court but it is the Senate which decides whether or not the nominee is confirmed, or rejected, and while the Republicans control the Senate it takes 61 votes to end a filibuster of a Supreme Court nominee, assuming that the Senate even holds a confirmation hearing which it is not constitutionally obligated to do.

Republican senators have, in the past, been all too eager to drop their pants and bend over for Democrat nominees whereas Democrat senators fight Republican nominees tooth and nail. The Republicans currently control the Senate by holding a majority (54) of the seats. Six of those “Republicans” have already said that the Senate should hold confirmation hearings without even knowing who Obama’s nominee is going to be!

Republican Senator Grassley, who has been saying that he will not hold confirmation hearings, is a RINO at heart. It is a coin toss as to whether or not Obama successfully appoints a replacement for Justice Scalia.

If Obama does then in the short term the Court becomes 5-4 against the Second Amendment. Whomever is elected President this November will almost certainly fill the inevitable vacancies of Justices Ginsburg, Kennedy and Breyer and if the Republican Senate discovers its backbone, the President will also appoint Justice Scalia’s successor.

Vote With Care In November

I reluctantly voted for G.W. Bush and G.H.W. Bush for no other reason than they might appoint conservatives to the Supreme Court.

This election, I will vote for the Republican nominee, whomever it turns out to be, because I know with a Republican President, particularly a first term Republican President who wants to get reelected, there is a real incentive for him to nominate Supreme Court justices who will support the Second Amendment. Likewise, I will vote for a Republican candidate for US Senate regardless of my personal distaste for whomever that candidate might be because there will be a chance that he will oppose a judicial nominee who is hostile to the Second Amendment.

This is the most important election since 1980. Choose wisely this November.

Charles Nichols is a proponent of open carry.  In 2011, he filed a Federal Civil Rights lawsuit seeking to overturn California’s 1967 ban on openly carrying loaded firearms in public for the purpose of lawful self-defense.  Oral argument in his case took place on February 15, 2018, before a three-judge panel of the 9th circuit court of appeals. Charles follows court cases relating to The Second Amendment and tells us what they really mean instead of what reporters, who have never read the decisions in the cases, say they mean.

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