Advocates of the Second Amendment are pursuing numerous lawsuits they hope will trigger a Supreme Court challenge that could reverse years of legislation.
The Second Amendment Foundation filed challenges in federal courts across the country.
Founder of the organization, Alan Gottlieb has said that the confusing nature of state laws, addressing issues from open carry to possession of certain weapons such as so-called “assault weapons” makes it necessary for SCOTUS to settle the issues once and for all.
“Politicians making claims that the Second Amendment doesn’t apply to so-called assault weapons is exactly why the Supreme Court needs to take all of these cases and put this issue to rest,” Gottlieb said in a statement to the Washington Free Beacon.
The nation’s highest court has never addressed a legal challenge on either federal or state bans on “assault weapons” and in fact has remained largely silent on Second Amendment issues since landmark decision such as District of Columbia v. Heller (2008) and McDonald v. Chicago (2010). These decisions struck down gun-control laws in Washington, D.C. and Chicago respectively.
Gun control zealots have taken the court’s silence as tacit approval for a variety of new bans and confiscation measures, to the point where some anti-gun nuts are taking that as settled law.
In February, Virginia delegate Mark Levine, a Democrat (of course) told that state’s Senate Judiciary Committee in February that the constitutionality of his proposed “assault weapons” ban and magazine confiscation was “settled law.”
“I understand that some people might disagree with the policy here but there should be no question as to the constitutionality of this bill,” Levine said.
The Virginia Senate ended up sending Levine’s proposal down in flames, however gun advocates such as Gottlieb say that rhetoric such as Levine’s shows why it is important for the Supreme Court to decide the issue.
Gun rights advocates believe that if the Supreme Court rules on gun cases involving bans like Levine’s that it could possibly change the scope of gun laws across the country.
It is hoped that any ruling by the court that expanded protection for what types of guns American citizens may own, or where they are able to take their weapons could hopefully overturn laws in left-wing states such as California, New York and Illinois.
The Heller case was used in 2016 to dismiss a woman’s conviction for possession of a stun gun that was banned in the Commonwealth—the ban was later struck down by the Massachusetts Supreme Judicial Court. That was the only major gun-rights case that the Supreme Court ruled on in the past ten years.
Gun-rights advocates believe that the refusal or maybe reluctance of the court to act has led to a mishmash of lower court decisions that confuse gun owners and empower left-wing legislators.
“There’s confusion across the country on this because of different rulings on it,” said Philp Van Cleave, head of the Virginia Citizens Defense League. “They absolutely should come in and get this straightened out once and for all so this right is protected.”
While there is no guarantee that the Supreme Court would rule in favor of the Second Amendment (Obamacare anyone?), most gun rights activists are confident that the court would rule in favor of gun rights.
In the Heller decision, the court ruled that weapons “in common use” for lawful purposes are protected by the Second Amendment. The AR-15 and other semiautomatic rifles are some of the most popular weapons in the country, with more than 17.7 million owned by civilians in the United States, according to a recent industry estimate.
“Under the U.S. Supreme Court’s Second Amendment precedent, Gov. Northam’s proposed gun ban is flat-out unconstitutional,” NRA spokeswoman Catherine Mortensen said. “The highest court in the land has repeatedly ruled that banning commonly owned arms violates the second Amendment.”
Some appellate courts have not agreed with that premise, but there has been no uniform legal reasoning between the various circuits affirming the constitutionality of gun bans.
For example, the Seventh Circuit ruled that AR-15s and similar firearms which are banned in Cook County, Illinois to not have a “reasonable relationship to the preservation or efficiency of a well-regulated militia.”
The Fourth Circuit ruled the AR-15s banned in Maryland are “weapons that are most useful in military service”—which Heller said was beyond the Second Amendment’s reach.
The D.C. Circuit ruled that there was a “substantial relationship” between the city’s AR-15 ban “and the objectives of protecting police officers and controlling crime.”
The First Circuit ruled that Massachusetts “[at most] minimally burdens” Second Amendment rights with its AR-15 ban.
According to Mark Oliva, a spokesman for the National Shooting Sports Foundation, he said that the varied opinions among the various circuits makes the issue a perfect reason for the high court to take up the case(s).
“There are no grounds to say it’s settled law. You have circuit courts of appeal that are at disagreement as to why those bans are constitutional,” he told The Free Beacon. “When you have disagreement among the circuit courts that is a reason why the Supreme Court could be weighing in to come to an agreement on what the standard is.”
Levine, clearly not a rocket scientist, argues that gun-control bans have received the blessing of the Roberts Court, referring to the Supreme Court’s decision not to take up an appeal of the Fourth Circuit ruling upholding Maryland’s assault weapons ban.
“This weapons restriction is clearly constitutional ,” he told the state Senate in February. “The [Maryland] case was appealed to the United States Supreme Court. The United States Supreme Court denied certiorari. That wasn’t the first time they’ve declined to review such a case. They’ve done so in other cases.”
However, Levine’s statement is disingenuous. He should well know, as gun rights advocates have pointed out, that the Supreme Court deciding not to hear an appeal can be for many reasons. Refusing to hear an appeal does not mean the high court endorses the lower court’s decision. Reasons the Court might decide not to take a case can be matters as simple such as limited docket space, justices waiting for split rulings at the circuit level, or simply wanting a better test case on an issue.
“I think Delegate Levine’s arguments are probably the best defense of his gun-confiscation legislation that he could make but they don’t stand up to legal precedence on why the Supreme Court does or does not take a case,” Gottlieb said.
Currently, there are at least six gun-rights challenges from Maryland, Illinois, Massachusetts, California and New Jersey—and one challenging a federal ban on interstate handgun sales—waiting for review by the Supreme Court.
Ladd Everitt, former director of the gun-control group One Pulse for America said that pro-gun control policy makers could, by their continual implementation of gun control measures, end up shooting themselves in the foot (no pun intended).
“The majority’s decision in Heller led to a torrent of litigation against gun-control laws nationwide,” Everitt said last year in an op-ed. “Thankfully, federal courts have rejected most of those challenges. It will become harder to do so in the future, however, if our increasingly pro-gun Supreme Court is allowed additional, unnecessary bites at the Second Amendment apple.”
In some cases, jurisdictions have actually held off on filing appeals on court decisions because they fear those cases, should they find their way to the Supreme Court, could set a precedent that would affect the entire country.
More recently, New York officials tried to withdraw a bid to defend a law which limited the transportation of legally owned firearms, however the Supreme Court had already agreed to review the case. Local gun-control groups even tried to get the state to loosen travel restrictions because they were afraid of what the Court might rule.
Some of the justices on the court have said publicly that they favor having the Court take more gun-rights cases. In 2017, when the court declined to hear a challenge to a California gun-carry law, Justices Clarence Thomas and Neil Gorsuch wrote a dissent, telling their colleagues not to “stand by idly while a State denies its citizens that right.”
The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right,” Thomas said:
“The Court has not heard [an] argument in a Second Amendment case in over seven years—since March 2, 2010, in McDonald…Since that tie, we have heard argument[s] 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.”
Since McDonald was decided, two of President Trump’s appointees have joined the court in Neil Gorsuch and Brett Kavanaugh. Kavanaugh has previously ruled on the constitutionality of gun bans, having dissented when the D.C. Circuit upheld the city’s assault-weapons ban in 2011.
“In my judgment, both D.C.’s ban on semiautomatic rifles and its gun registration requirement are unconstitutional under Heller,” he wrote. “There is not meaningful or persuasive constitutional distinction between semiautomatic handguns and semiautomatic rifles. Semiautomatic rifles, like semiautomatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting and other lawful uses.”
The New York City gun transportation case was heard by the Court in December, when justices heard oral arguments. They will be deciding whether to allow the city to drop the case or rule on the merits of the case.
If they do indeed rule on the case, it should give a pretty good indication of the direction of the Court where it concerns the Second Amendment. Either way, the Supreme Court has the ability to steer the direction of the gun rights movement going forward.
DAWG SAYS: THIS IS AN ISSUE THAT NEEDS TO BE RESOLVED ONE WAY OR ANOTHER. THIS IS ANOTHER CASE LIKE ROE VS WADE TOOK WAY TOO LONG AND LINGERED ON AND CAUSED MORE ISSUES THAN NEEDED.