SCOTUS Punts Again!

By Jeff Knox

(November 28, 2017) Yesterday the Supreme Court of the United States once again refused to stand up to protect the Second Amendment, by turning down two cases challenging infringing state gun laws, both of which had been decided wrongly in the 4th Circuit Court of Appeals.  One was a Florida case, where the state courts have, on the one hand, declared that there is a constitutional right to bear arms for self-defense outside the home, but on the other hand has declared that carrying concealed is a privilege, not a right.  That means that the right may only be exercised if you have been granted the privilege of doing so by the state… So Floridians have a right to carry firearms for personal defense, they just can’t exercise that right unless they jump through hoops, pay a fee, and are granted the privilege to carry concealed by the state.

The specific case, Norman v. Florida, is particularly troubling because Mr. Norman jumped through the hoops, paid the fee, and was granted the privilege to exercise his right.  Unfortunately the first time he exercised that privilege, he failed to conceal the firearm to the satisfaction of local police, who swarmed him and put him face-down on the sidewalk in handcuffs.  He was subsequently found guilty of openly carrying a firearm, and fined $300 plus court costs.

It’s difficult to avoid speculation that, had Mr. Norman been white and wearing a suit, the stop and the results might have been significantly different than they were.  A polite conversation with a stern warning about not allowing the gun to be easily observed would likely have been as far as things would have gone. But Mr. Norman is not a white man, and he wasn’t dressed nicely that day.  He is a black man, and was peacefully going about his business in a tank top and cargo shorts.

https://m.youtube.com/watch?v=-qKeJ6jd2Ak

By refusing to hear the case, the Supreme Court allows the decision of the Circuit court of Appeals to stand.  Leaving the right to carry in Florida subject to gaining the privilege to do so from the state, and requiring that the exercise of that right be in accordance with the terms of the privilege.

As troubling as that case is, the other case turned away by SCOTUS is even more troubling.  The case of Kolbe v. Hogan was a challenge to Maryland’s draconian ban on so-called “assault weapons” and “high-capacity” magazines.  In this case, while the 4th Circuit deciding that the ban is not unconstitutional is a serious concern, the Circuit Court’s rationale for that decision is an even bigger problem.

I wrote about this case earlier this year, and was convinced that SCOTUS would have no choice but to address the Circuit’s decision, because it took the SCOTUS decision in Heller, and stood it on its head.

The guns of the 4th Circuit actually claimed that the Supreme Court ruled in Heller that guns like the AR15 are not protected by the Second Amendment because they are of a type that would be particularly useful in a military application.

To reach this conclusion, the 4th Circuit judges took a minor comment from Justice Scalia’s decision in Heller, and completely changed the very obvious meaning and intent of the comment and the Heller decision itself.

In reaching the Heller decision, it is clear that there were some on the court who were worried that the decision would open up the possibility of challenges to the National Firearms Act and the Hughes Amendment which banned the sale of full-auto firearms manufactured after 1986.  Justice Scalia provided some groundwork for defense of the NFA and Hughes, by focusing on the idea that the protected arms of the Second Amendment are those that are “in common use” among the people at a given time. Scalia posited; “It may be objected that if weapons that are most useful in military service – M-16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause.”

He was suggesting that the argument should boil down to the issue of whether the particular arms in question are of a type that is currently “in common use.”  The idea being that since full-auto, military arms like the M-16 are not in common use among the people, they would not be protected by the Second Amendment.

That’s a pretty thin argument, since the only reason M-16s and other true military-style arms are not in common use, is that they have been tightly restricted and prohibitively expensive for the past 80 years.  But that is the argument Scalia was making. It should be noted that this argument was made as part of a larger discussion of the rationale surrounding the Court’s decision in Heller, and was not part of the official holding in the case.

So what the 4th Circuit did, was take this commentary, known as “dicta” in the courts, and claim that what it means is that guns that are “like M-16s,” are not protected by the Second Amendment because they are useful in military service.

That is clearly not at all what Scalia was suggesting.

Usually the Supreme Court is very protective of their past decisions, and they are quick to slap down a lower court that tries to distort and abuse them – especially in a landmark case like Heller.  So for the Court to let such a flagrant assault on such a recent decision, is just astonishing.

We’ve been saying for a long time that the Second Amendment will not be safe until we get at least one, but preferably two more, solid, pro-Constitution justices on the Court.  The loss of Justice Scalia was a serious blow, but even before that, the Second Amendment wasn’t safe, and there was little chance of seeing rights advance.

Justice Kennedy has hinted that he might retire next year, and expectations of Justice Ginsburg’s long-awaited departure have begun to feel like a bad Saturday Night Live sketch, but Justice Thomas isn’t getting any younger – or fitter – either, and precedents are piling up in the lower courts.  Replacing Ginsburg and Kennedy, while Thomas is still on the Court, could pull us back from the brink, but it’s all just guessing and wishful thinking at this point. One thing is pretty certain, Justice Ginsburg would keep serving after her death to avoid having Donald Trump name her replacement.  If Democrats gain control of the Senate, all of this could be moot though, because Schumer and the Democrats will block any and all Trump appointments to the Court, even if he is reelected for another four years.

The strongest argument for a Donald Trump presidency was the judges he would appoint to the Court. Unless the Senate will confirm those judges, last year’s victory will be moot.  If there is a competitive Senate race in your state, you need to be involved.