In 2018, if you are afraid of firearms, you most likely believe that the Second Amendment of the United States Constitution contains 27 of the most hated words in America. But, if you are a freedom-loving, patriotic American who believes in the Bill of Rights, you embrace these words, and others, that describe the individual civil rights which have been enshrined in the Constitution as having been endowed to us by our Creator, not the government. We all know these hotly contested words;
“A well regulated Militia, being necessary to the security of a Free State, the right of the people to keep and bear Arms, shall not be infringed.”
So why is the Second Amendment so hated and misunderstood by so many? The answer is quite simple. Those who are fearful believe that the Amendment is an impediment to public safety because it allows evil actors to easily acquire and misuse scary guns to kill people. So, if guns were banned, they claim, no more people would be murdered and we would all be safe. But the Supreme Court said, in Heller (2008), McDonald (2010) and Caetano (2016) that the Second Amendment gives individuals the right to bear arms for lawful purposes like self-defense and prevents the banning of guns! So, therefore those who are afraid argue, the Amendment itself must be banned or repealed!
This argument is an intentional perversion of the truth. It is so simplistic, so intellectually dishonest and devoid of intelligence, that it strains credulity to understand how the gun-phobic crowd can proffer it with a straight face! And yet, in states and cities where this exaggerated and illogical fear manifests itself in local governments through their elected representatives, they have enacted laws that do just that, banning many semi-automatic handguns, rifles and shotguns. making instant criminals out of millions of Americans by turning lawfully owned firearms into contraband!
The nationwide advocacy for fraudulent so-called “common sense gun control laws” is now firmly ensconced in their political mantra. They campaign on it, teach it schools and make it a part of their daily talking points when they are interviewed by their partners-in-fraud and allies in the media. And they enthusiastically disseminate this propaganda throughout our cultural, professional and governmental institutions, to include the federal judiciary.
To be sure, the leftists are a persistent bunch! Their strategy with respect to the federal courts is twofold. First, they will viciously attack any traditional Judge who supports established institutions and who may have been nominated by a like-minded President to fill a vacancy on the Supreme Court, especially those who believe in the judicial philosophy of “Originalism” like Robert Bork and Clarence Thomas, and second, if nominated by a President who desires to use non-existent executive powers to reshape public policy, they will heap high praise upon those judges who have demonstrated a propensity for judicial activism by legislating from the bench.
The vitriolic nature of modern day Senate confirmation hearings for Supreme Court nominees leads one to question whether the Court, as a non-partisan, independent institution of our government, has been compromised by the pervasive forces of factionalism. And even though, during the last 45 terms of the Court there have been only four ideologically non-traditional Associate Justices on the panel, one must ask, has their judicial activism been working quietly behind the scenes, hidden from public view, deep within chambers of the Court? Have they, in their attempt to shape public policy from the bench, successfully influenced the traditioal judges to such an extent that they can now guide the Court to either grant or deny certiorari on certain cases that they know will have a direct bearing on civil rights? And if they have, does that explain why there have been so few Second Amendment cases until Heller in 2008 and so few after McDonald in 2010? The answer is most likely yes, but probably unprovable!
To understand how and why this might be happening, one needs to consider the current composition of the non-traditional minority within the Court. There are three women, Elena Kagan, Ruth Ginsburg, Sonia Sotomayor and one man, Stephen Breyer. As is the case with all Judges and Justices of the Appellate Courts, these fine men and women are a collection exceptionally well educated people of high integrity who are respected by their peers. They work in a profession in which civility, steady temperament and persuasiveness are virtues and they understand that differences of opinion on the Court do not preclude the overall harmony of purpose. Certainly, they decide each case as an individual, but not without the benefit of candid conferences in chambers, collegial decision-making or the comfort of shared consensus.
But, they are human, and men and women react very differently to certain events. We are programmed that way by our DNA and each of us has personal biases and emotions. And mass murders with firearms are very emotional events. From July 2012 to 2018 there have been no less than fifteen tragic and incomprehensible shootings in which many died and many more were injured. While each Justice is concerned with protecting his or her reputation, they must also be equally interested in protecting the public image of the Court. Accordingly, and in light of the plethora of high profile mass murder events post McDonald, it is not inconceivable that the liberal Justices, in particular the women Justices, have convinced the other five to shy away from certiorari petitions involving the Second Amendment.
The history, traditions and procedures of the Court provide ample opportunity for the secret and silent abuse of our right to keep and bear arms; insidiously by deliberate neglect. The Court can, and has, without comment or justification, simply denied Certiorari in gun control cases brought against the states and, in the blink of an eye, the undesirable Second Amendment litigation is instantly and officially disposed of, leaving the ruling of the lower Courts to stand.
Two such notable cases, where petitions for certiorari were denied, are known as Friedman v. City of Highland Park (No. 15-133) decided on December 7, 2015, and Peruta v. California (No. 16-894), decided June 26, 2017. In both cases, Justice Thomas published scathing dissenting opinions criticizing the Court for refusing to review these important gun control cases. Here is the background information.
Highland Park is a suburban city in Lake County, Illinois, about 25 miles north of downtown Chicago. In 2014, the City Council enacted legislation banning the possession of commonly-owned semi-automatic firearms and large-capacity magazines within their city limits. These new laws were clearly contrary to the central holdings of Heller and McDonald. Mr. Friedman, a pediatrician, sued the City in Federal Court in the Seventh Circuit for violation of his Second Amendment rights. He lost there and in the Court of Appeals. His petition to the Supreme Court for a writ of certiorari was denied. The Supreme Court did not affirm the ruling of the Court of Appeals, but by default, it did allow Mr. Friedman’s right to keep and bear arms to be infringed. And to make matters worse, the nearby Village of Deerfield enacted copycat ordinances there, banning the same firearms as were banned in Highland Park.
Justice Thomas, joined by Justice Scalia in their dissenting opinion, clearly outlined how the Seventh Circuit Court of Appeals erred in its rulings. He wrote, in pertinent part, “The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions.”
After citing 4 examples of the Court’s prior reversals in other cases, Justice Thomas concluded with this, “There is no basis for a different result when our Second Amendment precedents are at stake. I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.”
Then on June 26, 2017, in Peruta v. California, Justice Thomas joined by Justice Gorsuch, once again criticized the Court for failing to review another important Second Amendment case which he described as one having “national importance”. Thomas wrote, in sum and substance that San Diego County, California, where Edward Peruta resided, is a place where the average citizen is generally prohibited from carrying a firearm in public spaces, either openly or concealed unless he or she obtains a license to do so by showing “good cause”. California law authorizes counties to set rules for when an applicant has shown good cause. In San Diego County, the sheriff has interpreted “good cause” to require an applicant to show that he has a particularized need, substantiated by documentary evidence, to carry a firearm for self-defense. The sheriff’s policy specifies that “concern for one’s personal safety” does not “alone” satisfy this requirement. Instead, an applicant must show “a set of circumstances that distinguish the applicant from the mainstream and cause him to be placed in harm’s way.” Because the Sheriff’s view of good cause was so overly restrictive it was nearly impossible for law-abiding, responsible citizens, to obtain a license to carry a firearm outside of the home for self-defense. They sued under Title 42 USC section 1983 and lost. The lawsuit eventually made it to the Supreme Court, but certiorari was denied.
In his dissent, Justice Thomas carefully illustrated where the Ninth Circuit Court of Appeals erred with respect to the precedents of Heller and McDonald. But then he wrote this, reprinted here in its entirety with emphasis added for maximum effect;
“Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively. Twenty-six States have asked us to resolve the question presented, see Brief for Alabama et al. as Amici Curiae, and the lower courts have fully vetted the issue. At least four other Courts of Appeals and three state courts of last resort have decided cases regarding the ability of States to regulate the public carry of firearms. Those decisions (plus the one below) have produced thorough opinions on both sides of the issue.
Hence, I do not see much value in waiting for additional courts to weigh in, especially when constitutional rights are at stake. The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right. See Friedman v. Highland Park.
The Constitution does not rank certain rights above others, and I do not think this Court should impose such a hierarchy by selectively enforcing its preferred rights. “Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document”. The Court has not heard argument in a Second Amendment case in over seven years—since March 2, 2010, in McDonald v. Chicago, 561 U. S. 742. Since that time, we have heard argument in, for example, roughly 35 cases where the question presented turned on the meaning of the First Amendment and 25 cases that turned on the meaning of the Fourth Amendment. This discrepancy is inexcusable, especially given how much less developed our jurisprudence is with respect to the Second Amendment as compared to the First and Fourth Amendments.”
For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.
So the Court, by failing to review Mr. Friedman’s and Mr. Peruta’s cases, has surrendered to the gun-control zealots’ politically desired outcome of banning firearms. Liberals have apparently, pulled off at least a partial ideological coup d’état from within the Court , thereby discovering a way for the liberal minority to nullify two majority constitutional precedents without actually overturning them! Now, depending upon which of the 13 judicial circuits you may happen to live in, your right to own an AR-15 for home defense may, or may not, be infringed!
How can we expect the United States Supreme Court to protect our Second Amendment rights us when they are not even willing to defend their own precedents? Gun-grabbing politicians can be defeated at the poles but their comrades remain alive and well in the Federal Judiciary. This untenable situation makes the confirmation of Judge Brett Kavanaugh more important than ever!
Please call or write to your U.S. Senators and tell them you want Judge Kavanaugh confirmed to the Supreme Court! Visit https://www.senate.gov to find out who they are and how to contact them!