The Second Amendment is in a Coma ten years after the Heller decision

June 26, 2018, marks ten years since the United States Supreme Court issued its landmark decision in District of Columbia v. Heller.

Despite the combined efforts of the so-called gun-rights groups, their purported anti-gun opponents, and judges who are all too eager to pronounce the Second Amendment dead, the Second Amendment still clings to life, albeit barely.

The multi-faceted holding of the Heller decision was succinctly summarized in the syllabus to the decision. Here is the short version of the syllabus:

“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

“The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.” Note: (The “operative clause” refers to that part of the Second Amendment which states “[T]he right of The People to keep and bear arms…”)

“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

“The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition-in the place where the importance of the lawful defense of self, family, and property is most acute-would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D.C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.”

The sole person remaining as a plaintiff in the lawsuit by the time it got to the US Supreme Court was Dick Heller who, as a DC special police officer, was able to openly carry a handgun outside of his home but was prohibited under D.C. law from possessing a handgun, or fully functional loaded firearm, in his home or on his private property.

Because of the specific facts of this case, the opponents of this decision, which include nearly every Federal judge who has had a Second Amendment case come before their court, have disregarded what the decision actually said (except when it suits them) and limited themselves to an abbreviated version of the facts of the case when confronted with Second Amendment cases they can’t dispose of on procedural grounds.

These folks interpret the scope of the Second Amendment right to be limited to the inside of one’s home, notwithstanding that the Heller decision affirmed the decision of the court of appeals which struck down the prohibition on carrying firearms not just in the home but on property possessed by the plaintiffs, both residential and commercial.

The courts, on the other hand, are all too eager to uphold prohibitions and restrictions on firearms which apply outside of the home which the Heller decision approved of (such as the prohibitions on concealed carry) and have interpreted the Heller courts admonishment that the Heller decision did not apply to certain “presumptively lawful” regulations as unrebuttable, prohibitions which are always constitutional, even when they are unconstitutional as applied to a specific person.

For the purposes of this article, I discount the “Felon in Possession” of a firearm cases which make up the Lion’s share of cases in which courts have uphold challenges to those laws. “Felons” are first in the list of persons who presumptively fall outside the scope of the Second Amendment protection according to the Heller decision.

For one thing, most of these cases involve convicted felons represented by public defenders who, with very few exceptions, make no real attempt to challenge the law. Typically, they argue that the law is facially unconstitutional and make no attempt to argue that the law is unconstitutional as-applied to their client.

Judges who show some restraint will look to the facts of the case and conclude that the law is constitutional as-applied to the defendant and then cite a prior precedent which holds that a person does not have standing to challenge a law as it applies to others when the law is constitutional as applied to the defendant.

And then there are those judges who apply a “facial test” to the law because there was no as-applied challenge raised on appeal and reject the facial challenge because the law is constitutional as-applied to someone without considering whether or not the law is constitutional as-applied to the defendant.

I similarly discount those few cases where the mentally ill (one of the presumptively valid prohibitions listed in Heller) and drug addicts challenged (and lost) laws prohibiting them from possessing firearms.

Foremost of all, I discount those cases where criminals claimed they have a Second Amendment right to keep and bear arms in conjunction with their criminal enterprise or felonious act.

The Heller decision held that self-defense is the central component (core) of the Second Amendment right. The late Justice Scalia who wrote the majority opinion was very explicit in explaining that the right is limited to lawful self-defense.

There is no Second Amendment right to use arms to murder someone, or rob someone, or rape someone, et cetera.

Which isn’t to say that just because a crime is labeled a felony, a felony conviction necessarily removes someone from the scope of the Second Amendment right, for life.

There are literally thousands of felonies on the books today which were never crimes for most of the history of the United States and there are a few crimes punished today as felonies which were historically misdemeanors.

Prior to the Heller decision, Second Amendment jurisprudence was sparse. Because of an 1833 US Supreme Court decision which held that the Bill of Rights does not apply to the states, the Supreme Court simply did not entertain Second Amendment challenges to state laws. Case in point was an 1894 US Supreme Court case which rejected a challenge to a Texas conviction under the Second and Fourth Amendments because the high court held that neither of those Amendments applies to the states.

Indeed, it was not until two years after the Heller decision (2010) did the United States Supreme Court hold that the Second Amendment applies to all state and local governments.

That case, Otis McDonald et al v. City of Chicago, involved a citywide ban on handgun possession. A ban not just in the home and on private property, but everywhere in the city if one happened to be a resident of the City of Chicago.

If one were not a resident of the city then one could, with the permission of Mr. McDonald, carry a handgun in Mr. McDonald’s home and outside of his home on his property, but Mr. McDonald, being a resident of Chicago, could not.

In footnote 13 of his dissent, Justice Stevens warned the justices who prevailed in the McDonald case that theirs would be a hollow victory.

Because of that 1833 Supreme Court decision which held that the Bill of Rights does not apply to the states, the Amendments in the Bill of Rights do not apply to the states and local governments until the US Supreme Court “selectively incorporates” those Amendments against the states.

Incorporation of one of these enumerated rights is accomplished through the 14th Amendment to the United States Constitution, what Justice Stevens then referred to as a “gloss” in his dissent. Justice Stevens warned that:

“If federal and state courts must harmonize their review of gun-control laws under the Second Amendment, the resulting jurisprudence may prove significantly more deferential to those laws than the status quo ante.”

That is exactly what has happened.

Contrary to what you see on TV and in the movies, judges do not see their role as one in which they must strike down unconstitutional laws. Indeed, they have created their own judge-made body of procedural law which holds that unconstitutional laws are presumptively constitutional and that their job is to avoid deciding whether or not a law is constitutional if they can uphold the unconstitutional law for other reasons.

One of those reasons judges used to dodge the question is that the person challenging the law failed to successfully navigate through the procedural law minefield the courts have laid in his path and in the path of everyone who challenges an unconstitutional law, policy, regulation or act of a government employee or official.

One misstep and the person challenging the unconstitutional law will lose without the court ever ruling on the merits of his case.

And in those cases where he has successfully navigated through that minefield the courts will evaluate the Constitutionality of the law based on a “level of scrutiny.”

What are “levels of scrutiny?” They are something the courts invented to uphold unconstitutional laws.

The least deferential test of a law is called “strict scrutiny.” When a court applies strict scrutiny to a law then the law is supposed to be narrowly tailored to achieve the government’s legitimate interest. That interest must be a compelling interest, and the law must be the least restrictive means of achieving that interest.

Judges are not required to apply strict scrutiny.

“Intermediate scrutiny” lies between strict scrutiny and the most deferential test which is called the “Rational Basis Test” or “Rational Basis Review.”

Intermediate scrutiny theoretically requires that to survive, a challenged law must be substantially related to an important government interest and although the law does not have to be the least restrictive means of achieving that governmental interest, the law must be a “close fit.”

The “Rational Basis Test” is the default test the courts apply unless they decide that “heightened scrutiny” (Intermediate or Strict Scrutiny) should apply. Most lawsuits challenging government laws, policies, or actions fail because the courts say that the challenged law passes the rational basis test. When a court applies what it calls the rational basis test to a law, the law survives in all but the rarest of circumstances.

In the 10 years since the Heller decision was published, the courts have created an entirely new test when the Second Amendment is at issue. The courts claim to be applying intermediate scrutiny but instead are applying something less than rational basis review.

Rational basis review, despite of it being highly deferential to the government, still requires that the law not be irrational or arbitrary.

Under this new faux intermediate scrutiny, the courts do not even question whether or not the law is irrational or arbitrary. The courts simply defer to the government without applying any test to the law while at the same time claiming that they are applying intermediate scrutiny.

Both the Heller and McDonald decisions took the rational basis test off the table when the Second Amendment is at issue in a case. The Supreme Court also held that the D.C. and City of Chicago laws failed all three tests: rational, intermediate, and strict.

If the US Supreme Court justices continue to allow the inferior courts to eviscerate the standards of review by allowing this new fake intermediate scrutiny to be used as a cover in upholding laws that are unconstitutional under any standard of review then there will be no reason to seek justice from the courts. As a matter of law, the Second Amendment will be dead.

But the law is a fiction created by men. As the late Justice Scalia prophetically observed in the Heller decision, the Second Amendment is merely the codification of an existing right. The right to keep and bear arms for the purpose of self-defense and for other lawful purposes does not depend upon the existence of the Second Amendment. The right existed before the Second Amendment was enacted and it will continue to exist long after the courts pronounce it dead.

Once people realize that seeking justice through the courts is as futile as attempting to repeal these laws through the ballot box then some of them will know that all that remains is the cartridge box, as we have long since lost the jury box as a safeguard to liberty.

There are those champing at the bit for revolution. I am not one of those people. Revolution is just another word for civil war and civil wars are always the bloodiest of wars.

Moreover, regardless of whether you call it a revolution, insurrection or civil war, guns and bombs are unlikely to play much of a role and certainly not a decisive one. The then conventional warfare practice of using soldiers as cannon fodder was already obsolete by the time the Allied forces landed on the beaches of Normandy. The Generals just didn’t know it at the time.

An American civil war today won’t be fought on a battlefield. It would be a highly technological, asymmetrical war in which the number of casualties would make the last two world wars look like training exercises in comparison. There would be no winners. It can be avoided in many ways. But because the Supreme Court justices, “who work in marbled halls” thought the guarantees of the Second Amendment are “antiquated and superfluous” and thinking this, the inferior court judges behaved like errant schoolboys when adjudicating Second Amendment cases before them, it may very well be unavoidable.

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