Donald Trump was widely criticized by media, Democrats and even some Republicans after he made a joke regarding Second Amendment remedies to Hillary Clinton’s plan to “essentially abolish” the Second Amendment. As if “reporters,” commentators and politicians were all reading from the same script, they consistently pointed out that Clinton had no such intentions – in spite of the fact that this is exactly what she intends to do.
Clinton has said, “The Supreme Court is wrong on the Second Amendment, and I am going to make that case every chance I get.” Combine that statement with the 5-4 decision in Heller, and Justice Ruth Bader Ginsburg’s declaration that the court’s ruling in Heller was a “bad decision,” and her suggestion that the court should revisit that ruling if they could get a fifth like-minded justice on the bench, and you have a formula for “essentially abolishing the Second Amendment.” But reversing Heller is not necessary to accomplish that. Heller was actually a very narrow and limited decision. While it did resolve the question of the right to arms being an individual right, rather than some sort of “collective right,” the case only dealt with the question of an individual’s right to possess a functional handgun in the home for self-defense. While the decision suggested broader application, it did not rule beyond that narrow issue. Their followup decision in McDonald was also a 5-4 decision, with Ginsburg and her three compatriots dissenting. It recognized the Second Amendment as dealing with a “fundamental right” that could not be ignored by the states.
Since those decisions, a number of cases testing the broader implications of Heller have made their way to the court, but the justices have refused to hear any of them. These cases have dealt with questions of how far the right to arms extends and what sorts of restrictions are permissible. In each case, a federal Court of Appeals had ruled in support of government limits and against individual rights – in clear conflict with the language of Heller and the Second Amendment itself.
All that is necessary for the Second Amendment to be “essentially abolished,” is for the Supreme Court to rule on one or two of these types of cases and deliver decisions that support those very bad lower court decisions. By ruling that things like “assault weapon” bans, bans on carry and registration schemes are constitutional, and setting the level of “scrutiny” at the lowest threshold, the Supreme Court could thoroughly neuter the Second Amendment without reversing Heller, and without having to amend the Constitution – essentially abolishing the meaning, intent and application of the Second Amendment for all practical purposes. This would take litigation off the table and put the fight back into Congress and state legislatures.
There is no doubt that this is exactly what the court would do if Ginsburg, Sotomayor, Kagan and Breyer had one more vote on their side. That’s why Donald Trump was absolutely correct in his assertion that Hillary Clinton would “essentially abolish the Second Amendment,” and that’s why it is so critical that she not be given the opportunity to accomplish that goal.
Barack Obama has nominated Judge Merrick Garland to fill the vacancy created by the death of Justice Antonin Scalia last February, but Republicans in the Senate say the new president should be the one to appoint Scalia’s replacement and have refused to consider Obama’s pick. If Clinton is elected, Republicans will probably also lose seats in the Senate, and her pick is likely to be much more radical than Garland.
Meanwhile in California, a very significant Second Amendment lawsuit recently suffered a crushing reversal and is ripe for being petitioned to the Supreme Court. The Peruta case has been bouncing around the courts since 2009. It challenged San Diego County’s policy of only issuing concealed carry licenses to individuals who could prove a particular need to carry a concealed firearm. A three-judge panel of the 9th Circuit Court of Appeals delivered a strong ruling that the “needs requirement” was a violation of the Second Amendment, but the court then called for an en banc hearing of the case and reversed that ruling. Their justification was that while the Second Amendment might guarantee a right to carry a firearm for self-defense, it does not guarantee a right to carry a gun concealed, and therefore the San Diego county policy is not a violation. What is so egregious about this decision is that California completely forbids the open carry of firearms, leaving licensed concealed carry as the only legal alternative, which leaves defensive carry as a privilege, not a right. A suit has now been filed challenging the ban on open carry, but at best we are looking at years more litigation, and it will all be for naught if Clinton names Scalia’s replacement.
The attorneys in the Peruta case are now in a difficult position. They have only a limited window in which to petition the Supreme Court for a hearing, but an appeal now could open the door for a “liberal” dominated court to eviscerate the Second Amendment. Only a Trump win can prevent that.
And of course, in the midst of these legal wranglings, California has adopted a half-dozen new, harsh gun control laws and has an even harsher initiative on the ballot for November. A group of activists have started a petition to force removal of the offending new laws, but it is a “Hail Marry” effort and will be meaningless if the anti-rights initiative passes. California voters must stop the anti-rights initiative, and the rest of us must stop Hillary Clinton. Anything less will most assuredly be disastrous for gun rights and much more.
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