by Jeff Knox
(August 17, 2016) 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 repeatedly criticized the Supreme Court’s ruling in the Heller case, calling it a “bad decision.” Justice Ruth Bader Ginsburg, who, along with four other justices dissented in the Heller case, has also called it a bad decision and suggested that the Court might revisit that ruling at some future point, but reversing Heller is not necessary to “essentially abolish” the Second Amendment. 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, beyond that it only established that an individual had the right to possess a functional handgun within the confines of their own home. While the decision suggested that the right was broader, the Court did not officially rule beyond the issue of self defense within the home. Their followup decision in McDonald was also a 5-4 decision, with Ginsburg and her three compatriots dissenting, which recognized the Second Amendment as dealing with a “fundamental right” which could not be ignored by the states.
Since those decisions, a number of cases dealing with questions of just how far the right to arms extends, and what sorts of restrictions on the right are permissible, have made their way to the Court, but virtually all of them have been turned away without a hearing, and in each of those cases, the Federal Court of Appeals had ruled in support of government limits and against individual rights.
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 cases and deliver decisions that support those very bad lower court decisions. By officially limiting Heller to only apply to the keeping of a self-defense handgun in the home, setting the level of “scrutiny” at the lowest threshold, and approving all manner of state and local restrictions, 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.
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 Merick Garland to fill the vacancy created by Scalia’s death, but Republicans in the Senate have insisted that they will not even consider the Garland nomination. They say the new president should be the one to nominate Scalia’s replacement. If Clinton is elected, not only is her pick likely to be much more radical than Garland, but Republicans will be obligated to consider the appointment and they are likely to have a slimmer majority in Congress, and quite possibly be in the minority, making it very difficult to reject a radical pick.
Meanwhile in California, a very significant Second Amendment lawsuit is waiting in the wings for possible petition 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 demonstrate a specific need to carry a concealed firearm for self-defense, above and beyond that of the public at large. A three-judge panel of the 9th Circuit Court of Appeals had ruled in favor of the plaintiffs, saying 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 the ruling of the panel. That ruling was about as disingenuous and convoluted as could be imagined. What the court basically said 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, therefore the San Diego county policy is not at odds with it. What is so egregious about this decision is that California forbids the open carry of firearms, leaving licensed concealed carry as the only legal alternative, so the court has decided to make this a Catch-22. 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 don’t want their case to be the one the Supreme Court uses to eviscerate the Second Amendment, but they have only a limited window in which to petition the Court for a hearing.
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. Californians must stop the anti-rights initiative, and the rest of us must stop Hillary Clinton. Anything less will most assuredly be disastrous.