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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.”

The Second Amendment is easy to understand, as it contains only 27 words and was conveniently written in English. Unlike the First Amendment, specifically written to apply only against the federal government and Congress (“Congress shall make no law…”), the Second Amendment was broadly written. It contains a dependent clause and an independent clause, and the independent clause contains a specific prohibition: “the right of the people to keep and bear arms shall not be infringed.” An obvious reading of the amendment makes clear it has always applied to the states.

Nothing has caused liberal judges to engage in more hyperbolic rhetorical gymnastics than those 27 words. How the right to keep and bear arms can be regulated without being infringed has mystified every competent constitutional scholar since John Jay. Yet, in spite of the clarity (or perhaps because of it), the amendment has been classified by Justice Thomas as “a disfavored right” by the four liberal judges on the Supreme Court. In other words, even though the Supreme Court would not permit similar encroachments of the less-specific First Amendment, it allows creeping destruction of the Second.

YOUR RIGHTS. REVIEWED

As you read this, the Supreme Court, which last year spoke on these issues in 2010, is again considering a landmark Second Amendment case. It may be the cause, as Justice Thomas notes, “the lower courts are resisting this court’s [Second Amendment] decisions and are failing to enforce the Second Amendment to the same extent that they protect other constitutional rights.” And, it may be because there are now five judges on the Supreme Court who actually interpret the words of the Second Amendment and not some new-age version of it.

At common law, the word “infringe” had a distinct meaning. An infringement was an invasion of a right. An Impingement of the right was also an infringement of the right. Any time an entity transgressed upon or usurped a right, there was an infringement. These concepts are as old as the common law itself. In spite of that, a pervasive liberal bias of some lower courts has seen fit to completely obliterate the concept of infringement by talking about “reasonable regulation.” (*1)

In New York State Rifle and Pistol Association v. The City of New York, the Supreme Court has the opportunity to broadly interpret the Second Amendment and restore freedom, or narrowly decide an issue that has clearly been decided wrong. While advocates hope for the former, the latter is perhaps more likely.

“HOW THE RIGHT TO KEEP AND BEAR ARMS CAN BE REGULATED WITHOUT BEING INFRINGED HAS MYSTIFIED EVERY COMPETENT CONSTITUTIONAL SCHOLAR SINCE JOHN JAY.”

HOLDING OR DICTA?

Courts apply and interpret the law by deciding specific issues preserved by the parties. The specific issue decided in the case is called the “holding.” Other opinions expressed in the opinions, however, are called obiter dicta. Essentially, they do not have the force of law and are designed to provide guidance to lower courts. Sadly, the Supreme Court had to take this case because the lower courts plugged their ears after the landmark Heller and McDonald opinions considering anything supportive of gun rights to be dicta.

The issue in the New York case is narrow. The petitioner sought an answer to this question:

Is the City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits consistent with the Second Amendment, the Commerce Clause and the constitutional right to travel?

The Second Circuit Court of Appeals had already addressed the question and found New York City’s ban quite appropriate. The NY State Rifle and Pistol Association (NYSRPA) had some harsh words on that decision:

“In District of Columbia v. Heller, 554 U.S. 570, 595 (2008), this Court held that the Second Amendment `confer[s] an individual right to keep and bear arms.’ Two years later, in McDonald v. City of Chicago, 561 U.S. 742 (2010), the Court held that this individual right is fundamental, applicable against state and local governments, and entitled to the same robust protections as other fundamental rights enshrined in the Constitution. The news has not yet reached New York City.”

In essence, the petitioners were telling the Supreme Court that the lower courts have not been applying its well-written and well-reasoned jurisprudence, and as a result, constitutional rights are being violated. This is, of course, the same lament that Justice Thomas penned.

PICK A PATH

Lawyers are taught to advance all the potential rationales for a judgment in their favor in the appeal so that a valid claim is not waived. That’s what the lawyers did here. They chiefly attacked the lower court’s Second Amendment jurisprudence, but not solely. The petitioners further claimed that the Commerce Clause and the constitutional right to travel were being violated. Because they’ve raised these additional arguments, the Court is free to decide the case on a basis other than the Second Amendment.

Courts routinely decide the narrow-est question they can decide to send a clear message to the lower courts such that there is no question about the rights at issue. A decision applying an analysis other than the Second Amendment might be able to get all nine votes whereas a decision contextually similar to Heller might only get five votes. Thus there is a strong incentive to decide the narrowest question. When a federal court is asked to rule on a constitutional basis, the Supreme Court has instructed the lower court to decide the constitutional issue only as a matter of last resort. (*2)

The Supreme Court, however frequently ignores this same instruction. (*3)

The narrowest question before the Court is that of the Commerce Clause.

The Commerce Clause says that Congress shall have the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Standing alone, the clause gives Congress the right to make laws affecting commerce with those specific entities. But the reach of that clause has been WIDELY expanded. Gonzales v. Raich 545 U.S. 1 (2005), gives us the modern view of that power. It came about because the original Articles of Confederation did not permit Congress to regulate commerce, and states erected protections for their merchants. The Commerce Clause was written to prevent the erection of trade barriers by the states. In their writ to the Supreme Court, NYSRPA said that the Supreme Court had made clear time and again that “local governments may not use their regulatory power to favor local enterprise by prohibiting patronage of out-of-state competitors or their facilities.” (*4)

But that is exactly what the City’s transport ban does. It prevents a New Yorker from taking his or her gun out of the city — ever. No New Yorker, for instance, could take his or her lawfully owned firearm to the SIG Sauer Academy in New Hampshire to train. He or she would have to rent a firearm at the Academy. That barrier is one prohibited by the Commerce Clause.

MINCING WORDS

Arguing before the Second Circuit NYSRPA had complained that Nevi York City’s ban on travel with a firearm impacts the Constitution’s explicit guarantee of a right to interstate travel. The Second Circuit, in a pithy piece of jurisprudence, said the “Constitution protects the right to travel, but not the right to travel armed.” THAT is what’s called SPLITTING SEMANTICS OR SEMANTICAL HAIRS. It was a phenomenal bit of rhetorical horseplay because whether the gun was loaded or unloaded, locked in a box or kept in a gun safe, the citizen could not travel outside New York City with it. This rationale likely did not go unnoticed at the Supreme Court level.

At this time, the briefs to the Supreme Court are now being penned, and all of these arguments will be expanded. Paul Clement, the former Solicitor General of the United States, is slated to argue the case for the petitioners. The briefs will provide a better understanding of the approach the advocates are taking.

HOPE FOR A PRECEDENT

Ideally, an opinion in the case would address more than simply the New York City ban. It would also provide guidance to lower courts to apply and enforce the clear language of the Second Amendment. Petitioners have demonstrated that cities like Chicago, Seattle and others have gone to extreme steps to limit gun rights, resulting in citizens being disarmed in violation of Heller and the Second Amendment. The petitioners have set out the cases they believe are wrongly decided, and Justice Thomas has been quick in recent years to point out that the Court should take more, not fewer, Second Amendment cases.

It’s important to note that the four judges hostile toward the Second Amendment are likely to be loud in their opposition to an opinion expanding gun rights. Former Justice Stevens has told anyone who will listen that he forced changes in the Heller opinion. For that reason, no one should be surprised if lower courts interpret cases based solely on the holding and not on the more expansive dicta sure to come from Justices Thomas and Kavanaugh.

ENDNOTES

(1) Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936). The Court will not “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” (2) Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936). The Court will not “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” (3) Zobrest v. Catalina Foothills School District, 113 S. Ct. 2462 (1993). The Supreme Court decided the constitutional questions because the school district failed to raise non-constitutional questions in the court below. (4) C&A Carbone Inc. v. Town of Clarkstown, 511 U.S. 383, 394 (1994). The Supreme Court held that an ordinance that forbade the shipping of solid waste violated the Commerce Clause.

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