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Second Amendment Rights not Assured Despite Court Victories

The Heller and McDonald cases may have established an individual right to bear arms but that doesn't mean there won't be efforts to subvert that right by gun control advocates.

by
Mike McDaniel

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May 15, 2011 - 12:00 am

In any attempt to create the socialist/Marxist administrative state, what kind of “fundamental change” would be necessary?  The goal, of course, must be to greatly increase the power of the centralized state and simultaneously to greatly decrease the power — the rights — of the individual. Individuals capable of compelling the state to recognize their rights, to hinder or subvert the designs of the state in any way, cannot be tolerated. In any such attempt, paramount must be the reduction and eventual elimination of the Second Amendment. Near-ultimate or ultimate state power cannot be attained and held if the people can resist with force of arms. But how can this be accomplished in the face of Supreme Court decisions affirming and incorporating the Second Amendment as a fundamental right?

In the aftermath of the Heller decision, which established the Second Amendment as a fundamental individual right, and the McDonald decision, which incorporated that right, applying it to the states, some have felt that the debate over guns in American life is essentially over. Anti-gun groups such as the Brady Campaign have had no real successes in years, and with Heller and McDonald decided, they seem likely to be relegated to being a nuisance around the margins of a debate that no longer holds the limelight. Unfortunately, such thinking ignores the realities of the administrative state and of the imperial judiciary.

Despite the aforementioned decisions, state and local legislators and bureaucrats in cities such as Chicago and Washington, D.C., continue to ignore the clear intent of the Supreme Court decisions and impose regulations, such as licensing requirements, excessive fees, and zoning regulations, so restrictive as to effectively prevent the sale and possession of firearms for all but the politically connected and the very hardy and determined few.

Note that virtually all of these enclaves of anti-gun sentiment — such as New York and Chicago — are Democrat-controlled, some might say Democrat-ruled — and have been for decades. That crime rates in such areas are commonly far higher than in cities that respect the Second Amendment rights of their citizens is a well-established fact, but a fact which has no determinative effect on the bureaucratic mind.

Few of these politicians or bureaucrats will think or say “the Constitution doesn’t allow that,” or “the Supreme Court’s decisions have limited my power and actions.” They will simply do what they want, secure in the knowledge that it will take many years and many millions for their edicts to be overturned, and even then, they will suffer nothing for imposing them. They are quite likely to merely start over with the most minute of adjustments to policies they knew to be unconstitutional from the start.

As is its usual practice, the Supreme Court kept the parameters of each case quite narrow, deciding only the major question raised rather than delineating details. It is here that the administrative state has substantial room to make mischief and rules. For the moment, Heller and McDonald have affirmed essentially only that individual citizens not prohibited by law, such as through felony convictions or having been judged mentally impaired, have a right to keep and bear arms for any lawful purpose, including self-defense. However, that right is explicitly operative only within the home, leaving an enormous range of mischief making for anti-gun activists and power-hungry politicians and bureaucrats.

It is not absolutely clear, for example, if the right extends to the limits of one’s property. Theoretically, a gun-bearing citizen stepping onto his front porch might be liable for arrest in any jurisdiction that cares to enact such a restrictive law. The poor citizen might eventually have such a conviction overturned, but that’s thousands of dollars and many years (even many years in prison) later, surely a proposition beyond the means and determination of most people, even those willing to fight for principle.

The logical man would reason that a right as important as the right to keep and bear arms for self defense — and this portion of the right has been clearly delineated — must encompass not only the interior of the home, but at the very least the entirety of a homeowner’s property and their person. The defense of self and the defense of property are two entirely different matters. What good is a fundamental right that begins and ends at one’s front door or property line? A right to free speech, for example, limited to haranguing one’s family within the walls of one’s own home isn’t a right at all.

If one of the underlying purposes of the right is self-defense — and the Supreme Court has made this much clear — must it not necessarily apply to wherever the ”self” is at any given moment? If it does not, can it be said to actually be a right rather than a whimsically granted and rescinded privilege bestowed by government?

And if one has a right to self-defense wherever they may be, what restrictions are allowable? The aforementioned cities prohibit concealed carry of handguns by all but an elite, politically favored few. Other jurisdictions make the carrying of firearms in vehicles so burdensome — requiring, for example, that they be unloaded and carried in locked containers inaccessible to the driver, and that ammunition must be stored separately — that they are practically useless for self-defense.

Such laws make for obviously absurd realities. Imagine if the Fourth Amendment right to be free of unreasonable searches and seizures was so narrowly construed. The moment one stepped out of their home or off their property, might they not be subject to strip searches at the whim of the state? Might not every vehicle in which they were traveling be subject to unrestricted search and seizure?

Imagine similar limitations on the First Amendment right to peaceably petition the government for redress of grievances. What would keep the state from allowing such protest only on the Internet — with prior approval and control of content — or via telephone, essentially within the confines of the home, but not off one’s property?

That such narrow interpretations of fundamental rights render them something other, something less than fundamental rights is unquestionably true.  Such is not the case with most of the Bill of Rights because such issues have long ago been decided and incorporated into the laws of the states. Second Amendment jurisprudence is still in its infancy, allowing the administrative state enormous latitude in infringing on a fundamental right that in its clearly understood text brooks no infringement, despite the apparent inability of the self-imagined better classes to understand the written English of the late 1700s.

The greatest danger lies with the imperial judiciary. President Obama has already appointed two stealth anti-Second Amendment Supreme Court justices in Elena Kagan and Sonia Sotomayor. Because they were replacements for equally liberal justices, the balance of the court has not shifted, and for the moment, the fundamental right affirmed and incorporated in Heller and McDonald stands, but on shaky ground indeed. Even though most of the justices conceded in deciding Heller that the Second Amendment is an individual right, there was not similar consensus on its application. Many of those in the minority were quite willing to interpret the Amendment in ways that would render it a fundamental right without any meaningful, practical application for the individual. It likely would, should the Heller minority become the majority, become a right on paper only.

Should the balance of the court shift from those who decide cases based on American law and the facts to those who seek to impose what they consider to be worthy social policies unobtainable through the legislative process, it would be a brave new world indeed. It is not outside the realm of possibility that they would actually overturn Heller and McDonald rather than nitpick it out of practical existence.

If they maintained any respect for precedent and the institution of the Court, such an outright reversal would be less likely, but interpreting away any practical application of the right would be a virtual certainty. It would leave citizens liable to arrest and felony conviction merely for possessing a firearm at the wrong place and time regardless of their intent. Unfortunate citizens unknowingly stepping over a municipal or state boundary line could easily become instant felons. Those who fail to see the danger inherent in this might visit my previous PJ Media article on Supreme Court Justice Breyer, whose willingness to do just as I have suggested is more than clear and more than chilling.

This problem is exacerbated by the tactics employed by the respective parties: Republicans tend to believe that a president should be allowed to appoint any candidate who is objectively qualified to sit on the court.  Democrats recognize no such restraints, and will go to any end to obstruct or eliminate any but those who share their “social justice” dogma. Democrats play to win while Republicans play to uphold the Constitution, a document that far too many Democrats see as merely an antiquated impediment to the realization of their policy goals.

Assuming the current interpretation balance of the Supreme Court remains unchanged, it is likely that lower courts that stray too far from Heller and McDonald will be overturned for a less restrictive understanding of the realities of self-defense. However, such decisions might be many years away, and entire portions of the nation, many of millions of citizens, might be subject to freedom-strangling regulations and unjust criminal convictions until the jurisdiction that imposed them are forced to abandon them by a future Supreme Court.

It should not be forgotten that it is in the appointment of lower court judges that a president can do great harm to liberty. Therefore, no one concerned about the sanctity of the entire Bill of Rights may rest easy until Mr. Obama is retired to play golf, write his memoirs, and assume the worldwide leadership and adulation that he and his minions believe to be his destiny. Four more years of hope and change would be likely to change the balance of the Supreme Court toward the kind of social engineering indispensable to the goals of socialism.

Even if ObamaCare is eventually repealed, turning the Supreme Court into a subsidiary of the Democratic Party could very well be Mr. Obama’s greatest accomplishment. It is an accomplishment he must be denied if the inalienable right to self-defense is to survive. Ben Franklin may well have been right.  Whether we can keep a republic remains an open question, and a question that will be measured, in large part, by the near future of the Second Amendment.

Mike McDaniel is a former police officer, detective, and SWAT operator, and is now a high school English teacher. He blogs here.
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