While the U.S. Supreme Court once again punted on a Second Amendment case Monday, Associate Justice Brett Kavanaugh signaled that the time is ripe for the high court to consider another gun rights case and a scathing 31-page dissent by Associate Justice Samuel Alito explained why.
The importance of another high court ruling on Second Amendment rights—particularly the right to bear arms outside the home—cannot be overstated, and a paragraph in the Los Angeles Times by editorial writer Scott Martelle makes that clear.
“And, in a sense,” Martelle wrote, “gun-control advocates dodged a legal bullet — this time. Unfortunately, the conservative members of the court signaled in dissents that they might be looking for a way to recognize a 2nd Amendment right to carry a firearm in public.”
Why is that “unfortunate?” The Los Angeles Times has never seemed to like the Second Amendment. The newspaper’s editorial board traditionally embraces every new gun control measure that shows up, either in Sacramento or on Capitol Hill.
New York State Rifle & Pistol Association v. City of New York showed municipal anti-gunners going so far over the line that when they were finally confronted with the genuine possibility of a Supreme Court smack down, they scurried to change the law just enough to moot the case. That was enough to convince Second Amendment activists that the city has known all along their restrictive handgun regulation was unconstitutional, and only when the possibility arose for the high court to say so did they abruptly change the law.
Not only did the law not pass the smell test, critics argue, a quartet of Democratic senators last year filed an amicus that many considered a not-so-veiled-threat to retaliate if the court handed down a ruling.
In concurring with the majority opinion, Justice Kavanaugh dropped this landmine in the middle of the playing field: “And I share JUSTICE ALITO’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”
There is growing impatience on the part of the nation’s gun owners, especially those licensed to carry or who live in states where no license is required to pack a sidearm outside of one’s home or business, to define the term “bear arms” and explain what it means.
Gun rights activists also want to see other laws that allegedly infringe upon the Second Amendment struck down. A good example is the California background check requirement to purchase ammunition.
In the interim, Justice Alito’s dissent, joined by Justices Clarence Thomas and Neil Gorsuch, takes the issue apart, piece by painful piece. In the prickly tradition of late Justice Antonin Scalia, author of the 2008 Heller decision, Alito smacks hard at the city.
“One might have thought,” Alito writes, “that the City, having convinced the lower courts that its law was consistent with Heller, would have been willing to defend its victory in this Court. But once we granted certiorari, both the City and the State of New York sprang into action to prevent us from deciding this case. Although the City had previously insisted that its ordinance served important public safety purposes, our grant of review apparently led to an epiphany of sorts, and the City quickly changed its ordinance. And for good measure the State enacted a law making the old New York City ordinance illegal.”
Later, Alito observes that “dismissing the case as moot means that petitioners are stuck with the attorney’s fees they incurred in challenging a rule that the City ultimately abandoned—and which it now admits was not needed for public safety. That is so because “[a] defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.”
A few lines later, Alito notes, “Here, the City fought petitioners tooth and nail in the District Court and the Court of Appeals, insisting that its old ordinance served important public safety purposes. When petitioners sought review in this Court, the City opposed certiorari on the same ground. But once we granted review, the City essentially attempted to impose a unilateral settlement that deprived petitioners of attorney’s fees. And those fees would likely be substantial. They would reflect five years of intensive litigation—everything from the drafting of the complaint, through multiple rounds of District Court motion practice, to appellate review, and proceedings in this Court.”
On Page 25-26, Alito argues, “In Heller, we held that a District of Columbia rule that effectively prevented a law-abiding citizen from keeping a handgun in the home for purposes of self-defense constituted a core violation of the Second Amendment…
“For a similar reason, 38 N. Y. C. R. R. §5–23 also violated the Second Amendment. We deal here with the same core Second Amendment right, the right to keep a handgun in the home for self-defense.
“As we said in Heller, “‘to bear arms implies something more than the mere keeping [of arms]; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use.’”
One page later, Alito lowers the proverbial boom: “Petitioners do not claim the right to fire weapons in public places within the City. Instead, they claim they have a right to practice at ranges and competitions outside the City, and neither the City, the courts below, nor any of the many amici supporting the City have shown that municipalities during the founding era prevented gun owners from taking their guns outside city limits for practice.”
Finally, Alito concludes his dissent noting, “In sum, the City’s travel restriction burdened the very right recognized in Heller. History provides no support for a restriction of this type. The City’s public safety arguments were weak on their face, were not substantiated in any way, and were accepted below with no serious probing. And once we granted review in this case, the City’s public safety concerns evaporated. We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern.”
For more than a decade since Heller, critics say, lower federal courts have often acted as though the landmark Second Amendment ruling did not exist. That could change quickly if the high court takes up a gun control case, as noted by Alan Gottlieb, founder and executive vice president of the Second Amendment Foundation. This organization has become a powerhouse in gun rights litigation since the Heller decision, and the 2010 McDonald challenge to Chicago’s handgun ban was a SAF case.
“The Second Amendment Foundation currently has five cases pending before the Supreme Court that could serve that purpose,” Gottlieb said, “and we hope that one or all of these cases gets heard and gives notice to lower courts that they can no longer thumb their noses at the prior rulings that protect Second Amendment rights.”
The five SAF cases already submitted to the high court are Rodriguez v. City of San Jose; Pena v. Horan, Culp v. Madigan, Wilson v. Cook County, Illinoius and Mance v. Barr. The Mance case involves SAF’s sister organization, the Citizens Committee for the Right to Keep and Bear Arms as a plaintiff, which is a rare occurrence. CCRKBA traditionally leaves court activity to SAF, while concentrating its own efforts on grassroots activities.
“SCOTUS mooted the New York case as the old law is no longer valid,” Gottlieb remarked, “but invited hearing another case pending before the high court to insure that lower courts adhere to the Heller and McDonald rulings made previously by the high court. We’ve got four ready-made cases now on the table just waiting for acceptance.”
That prospect apparently makes some anti-gunners squirm. They were wrong when they argued the Second Amendment only protects the right of a state to organize a militia. They were wrong when they argued that handgun bans as adopted by Washington, D.C. and Chicago were constitutional and “common sense.” They have been consistently wrong that more guns in the hands of law-abiding citizens will result in more violence.
Gottlieb is crossing his fingers that the high court accepts one or more of his organization’s cases for review when it conferences on May 1.
