Supreme Court New York Second Amendment Protest
Courtesy Matt Laur

By Miguel A. Faria, MD

Some readers were surprised to learn from my previous article on this subject that the Supreme Court of the United States has not made it clear that the right to keep and bear arms is protected outside the home. “How can that be?” they asked. Further perplexed, they wondered, “But what about the SCOTUS decisions in the previous decade that supported the Second Amendment as an individual right to keep and bear arms?”

Well, yes, in a 5-4 decision in District of Columbia v. Heller, the Supreme Court struck down Washington, D.C.’s handgun ban, and in McDonald v. Chicago in a very similar 5-4 decision, it struck down Chicago’s draconian handgun ban.

But these 5-4 decisions have been hanging by threads. Chief Justice John Roberts has become an unpredictable vote and unreliable as a constitutionalist. Moreover, the liberal justices’ dissent at the time provided a clear warning: the Supreme Court is just one vote away from reversing Heller and McDonald.

But even with these decisions standing, the courts and Congress seem to have abdicated their duty to vigorously interpret the Second Amendment’s right to keep and bear arms in light of these two affirming decisions. Incredible as it may seem, some courts have interpreted them as protecting the right to firearm ownership in the home, but not in the streets, or during transportation from one’s home to a shooting club or anywhere else, depending on the state.

And yet, when we look at the other natural or God-given rights supposedly guaranteed by the Constitution, we see that all of them apply to individuals both in and outside the home, including the prohibition against the quartering of soldiers in people’s home, a right enumerated in the Third Amendment. And when it comes to the First Amendment, we have to admit that we have also moved in an authoritarian direction.

We can go to churches, although this right has been curtailed by the farce of the COVID-19 lockdowns. We have also been guaranteed freedom of speech, although this right has been curtailed by insidious political correctness and the mere accusation of hate speech, as determined by the Thought Police, Marxist academicians, and the liberal media.

As for peaceful assemblies and the redress of grievances, anarchists and communists infiltrating Black Lives Matter (BLM) and Antifa have been given a go-ahead for not-so-peaceful assemblies — or rather riots with violent looting and burning! Thus, as in George Orwell’s Animal Farm, some animals are more equal than others.

But ignoring these recent inconsistencies brought about by political correctness, and not by judicial precedent, the Supreme Court has held that when the phrase “the people” is used in the context of the Second Amendment, it means “individuals,” meaning “the right of the people to keep and bear arms shall not be infringed” (U.S. v. Verdugo-Urquidez). And these are the same “people” and individuals empowered in the other Amendments, including the 1st, 4th, 9th, and 10th Amendments of the Bill of Rights.

The question should then be asked is, why can’t the Second Amendment be a full and complete right, like all the others in the Bill of Rights?

We need to proceed with filling the vacancy left by the death of Ruth Bader Ginsburg and let SCOTUS get back to the business of the judiciary branch of government, particularly bringing the Second Amendment on par with the rest of the Bill of Rights. And there is a lot of that business that needs to be transacted.

Supreme Court gun control new york state rifle & pistol
(AP Photo/J. Scott Applewhite)

For example, the Supreme Court has turned down several attempts to challenge various Circuit Court decisions upholding restrictive concealed carry legislation in Maryland, New Jersey, and California. In California, the Ninth Circuit Court denied that the Second Amendment protects the right to carry concealed weapons in public.

Justices Clarence Thomas and Neil Gorsuch expressed regret that the Supreme Court failed to take up the challenge of the California case and believed it was high time SCOTUS ruled on the issue of concealed carry legislation and affirm the Second Amendment right outside the home.

“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 further wrote in his dissent, “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.”

Open carry is another issue that hasn’t been settled to the satisfaction of gun owners, and the topic came to the forefront in Florida, the state that interestingly enough in 1987 passed the landmark concealed carry legislation. The case was that of Dale Norman, a Floridian with a concealed carry permit who in 2012 was arrested in Fort Pierce openly carrying a gun in a holster. He was fined and convicted of a misdemeanor and appealed on constitutional grounds.

The U.S. Supreme Court declined to hear the case and effectively let stand a Florida Supreme Court ruling in March 2017 stating that the open-carry ban of the state did not violate the constitutional right of citizens to bear arms. Attorneys for the state successfully argued that lawful citizens may already carry concealed weapons legally by obtaining permits without undue burden. They also cited the fact that the U.S. Supreme Court has yet to rule that the Second Amendment protects open carry in public.

(AP Photo/Jessica Hill, File)

And then there’s the constitutionality of “assault weapons.” These popular and beneficial semi-automatic firearms with paramilitary-style looks have been under attack on both the federal and state levels. Despite their usefulness for sport shooting, hunting, as well as being life-saving tools during natural catastrophes, urban unrest, and self-defense against multiple criminal assailants, these firearms have been so maligned that some courts are yet to rule favorably on their constitutionality.

On November 27, 2017, the U.S. Supreme Court refused to take up Maryland’s assault weapons ban. The Fourth Circuit Court of Appeals upheld Maryland’s Firearm Safety Act of 2013, banning the AR-15 “and other military-style rifles and shotguns.” Apparently, semi-automatic “assault weapons” were confused with fully automatic “assault rifles” and characterized as military weapons, and thus excluded from Second Amendment protection.

Interestingly, the Fourth Circuit judge who wrote the majority decision stated, “Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.” Curiously, it was precisely in Miller v. U.S., the last major federal ruling on the Second Amendment from 1939 until the Heller decision in 2008, that ownership of military-style weapons were specifically protected as a pre-existent individual right by the Second Amendment.

With a new Trump-appointed conservative Justice, the Supreme Court should finally be able to allow the Second Amendment to sit in the front of the bus with the rest of the Bill of Rights.

 

Miguel A. Faria, M.D., is Associate Editor in Chief in socioeconomics, politics, medicine, and world affairs of Surgical Neurology International (SNI). He was appointed and served at the behest of President George W. Bush as member of the Injury Research Grant Review Committee of the Centers for Disease Control and Prevention (CDC), 2002-2005. His recently released book is America, Guns, and Freedom: A Journey Into Politics and the Public Health & Gun Control Movements (2019).

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38 COMMENTS

  1. Still won’t bank on Roberts.

    However, at least the political stasis of the 2A (among other things)may finally end, if not temporarily.

  2. O K Mr. President,, the balls in your court now, we NEED a real Constitutionalist to be appointed, Pronto…
    M A G A …..
    “”” FREE KYLE”””

  3. Once again not holding my breath…the gal with 7 kid’s looks good but who know’s when they get a big whiff of power??? Meanwhile I suggest everyone prep for the coming election. Obviously guns n ammo but mundane stuff like water,canned food,toilet paper and gasoline. Win or lose there’ll be he!! to pay! Especially if S L O W Joe “wins” and mysteriously became even more demented😕😕😕😕😕

    • “but who know’s when they get a big whiff of power???”

      That’s absolutely correct. Many of them look good, right up until they realize that they have the hammer. That’s when they go all Rubbery Roberts on us.

    • Heard it said by one commenter that to guarantee at least a 5-4 originalist vote, you need often at least a 6 to 7 conservative majority on the court.

    • ” …lol, you poor delusional groupies.”

      The sound of you wails of anguish will soon be sweet, sweet music to ‘People of the Gun’ across the land … 🙂

  5. The most important thing the Second Amendment needs from the courts is Miller called out for the show trial it was.

    • Not entirely correct.

      In the Dred Scott case, the majority opinion held that Mr Scott was property. They denied that he was a person. And their argument was that if he was a person, he would be able to keep and bear arms (along with other personal rights).

  7. Doc, I don’t know about that third amendment thing. One of my best friend’s brother-in-law, his father and uncle recently sold their beach house. This was an old school Florida beach house. Huge. (Went for $21,000,000) Built in the ’20s if I recall. During WWII it was used to house Coast Guard or Navy on submarine watch in the Gulf of Mexico. Yeah, German U-boats were there too. I’ve fished and dove the Empire Mica. Coastal freighter sunk off Mexico Beach. I’ll call Gil and ask if it was occupied with permission or commandeered. Point is; no matter the right, constant vigilance is required to keep it.

  8. SCOTUS is 100% worthless at best, and at worst they actively work to our detriment. The Constitution and BoR are meaningless, and US law now draws its legitimacy solely from force. Let’s not pretend the courts can save us, not after they’ve spent a century either allowing others to sodomize us or even doing it themselves

  9. Any Judge who gets the basics of Natural Human Rights wrong should be hanging from a light pole…then they will get it right…same for all politicians & non-Politicians.

    • bronze,

      And that was our (first) huge mistake – ever allowing them to be characterized as our “Constitutional” rights. They aren’t They are INHERENT, INDIVIDUAL, human rights – we were just the first country to explicitly state, in our founding documents, that “these rights we have from God, and the government SHALL NOT f*** with them!”.

      The Federalist (and the Anti-Federalist) Papers, the DoI, the notes of the debate of the DoI, the Constitution, and the notes of the debate on the Constitution (as well as the instructive study of the individual state constitutions adopted more-or-less contemporaneously) make this crystal clear.

      Once we allowed the obviously false-to-fact notion that these rights were “granted” by the Constitution, we screwed ourselves. We allowed the opponents of individual rights and liberty to frame the debate. And ever since then, we’ve gotten regularly and royally rogered by “public good” morons.

      Don’t weep and wail over the outcome, since it was utterly predictable once we accepted the basic premise.

      As a wise man once said, “If you feel like you’re getting f***ed up the @$$, ask yourself, ‘Did I bend over?’ If the answer is ‘yes’, then . . . stand up.” I’ll take all y’all seriously when you’re ready to stand up.

  11. … the Supreme Court has turned down several attempts to challenge various Circuit Court decisions upholding restrictive concealed carry legislation in Maryland, New Jersey, and California.

    And that was a wise move since Roberts very well might have sided with the four Progressive Justices.

    • Totally agree. There are some (IMNSHO) interesting “low key” blogs out there, populated mostly by “libertarian” commenters, a substantial minority (perhaps a majority?) of which are attorneys, many of whom are currently ‘in the belly of the beast’. My own personal experience is that their collective analyses of current political/legal issues, and DEFINITELY their predictions, tend to be much more accurate than anything you get from the news.

      I have read several thoughtful pieces to the effect that “Scalia wrote that horrible (read the footnotes) opinion, because he had to hold together a FRAGILE one-vote majority. He gave us as much as he could.” I have seen follow up pieces asserting that the REASON so many of the right of center justices have held off on cases that a rational reader of Heller would have expected them to take, was that they didn’t want to risk of that shaky 5-4 coalition going squish on them. I have NO reason to disagree with, and ample reason to believe, that idea. Can’t offer any more proof than that.

      When (note, “when”, not “if”) ACB is confirmed? I would not be shocked to see SCOTUS become more willing to take up a LOT of topics that have been danced around for years – including, but not limited to, the 2A.

      Not a prediction, just a personal opinion. And we all know about opinions.

    • You got that right, marsupial one.

      I guess there are advantages to living in a burrow near a ditch and dining in the Subway dumpster… 🙂

  13. And this is why the Dems were talking about “stacking” the Supreme Court by adding more justices to outweigh the conservative constitutionalist judges. They absolutely cannot abide a populace which actually has the power the Dems want for themselves.

    I have to say, however, it should never have come to this. The first two years of the Trump administration enjoyed a Republican House, Senate and Presidency but they extended no assistance to the POTG. The Hearing Protection Act went by the wayside. Numerous infringements were left untouched in multiple states and the odious regulations requiring this part or that number of parts for imports were let standing.

    Now we once again have to vote in record numbers to offset the Democrat chicanery: mail in fraud, giving felons their votes back, telling lies and obfuscations, the inevitable October surprise.

    There has literally not been a more important election within living memory. Vote as if your life, fortune and safety depends on it. Because it does.

    • I hope the POTG realize none of this would be possible without Trump kicking Hillary square in the teeth in 2016.

      Imagine Scalia replaced by Kagan 2, Kennedy replaced by mini-Sotomayor, and RGB replaced by BLM and Antifa.

      The court would be 6-3 Leftist, and they would destroy the 2A.

      It was Trump that saved this Republic from that dystopian horror…

      • And that victory will be appallingly short-lived if the Dems get the chance to stack the Supreme Court with another 4 or 5 judges on top of the ones they already have.

        So: the core point remains. VOTE!

        • If the Democrats attempt to stack SCOTUS it will destroy the last vestiges of legitimacy our Government has. Remember, in a Banana Republic, there is no crime if (1) you belong to the right group (2) you don’t get caught. I don’t think the Democratic party or the left realize that if you’re losing the game and flip the board, you free your opponent from playing by the rules as well. Imagine 30-40% of the population becoming scofflaws overnight.

          It reminds me of the old story of the ruler who favored the death penalty for everything. A commander and troops are on their way back to the capital but are delayed, and thus will be late for their official audience. Upon realizing this, he turns to his lieutenant and asks “What’s the penalty for being late?” his underling replies that it is death. He then asks “What’s the penalty for Rebellion?” to which his underling again replies “death”. He then proposes rebellion and his soldiers agree that it is better to attempt rebellion, fail, and be executed, than to simply go as lambs to the slaughter for the crime of being late.

          I do not know if this is simply legend or if it is based on fact, but it is food for thought. If a Government departs from the legitimacy of it’s social contract, our founders argued that it was the patriotic duty of the citizens to cast it aside and create a new one.

          Food for thought.

  14. All gun rights cases should be 9-0 in favor of rights….anything less gets the rope…

    Want to Bring back America…. bring back public hangings & floggings……

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