Repealing The Second Amendment, One State At A Time
The U.S. Ninth Circuit Court of Appeals — those wacky judges out on the Far Left Coast — did last Thursday what it almost always does: It issued a ruling bound to drive conservatives crazy.
We’ll get to the specifics of the court’s hair-tearing decision in a moment. First, it bears noting that in the past, the Ninth’s excesses have been overturned routinely by its betters at the U.S. Supreme Court.
But that was then. This is the worrisome new post-Antonin-Scalia/post-slender-conservative-majority world. This, for the moment, is a Supreme Court either deadlocked or tilting left, depending on swingman Anthony Kennedy’s waking mood.
Absent a White House boss committed to filling Scalia’s vacancy with someone equally committed to applying the Constitution’s original intent, that fragile balance could be lost for a generation. And so what the Ninth accomplished Thursday, when it ruled 7-4 Americans do not have a right to concealed weapons permits under the Second Amendment, had the effect of concentrating the minds of conservatives dismayed about their choices for president.
Once again, the best — perhaps only — persuasive argument to coax #maybeTrump voters off the fence raises its sulfurous head: The sum of Donald Trump’s abhorrent qualities is outweighed, potentially, by the possibility he will nominate originalist justices.
Stipulated: That’s a lot of qualifiers in one sentence. But if the Supreme Court holds the key to an America recognizable by conservatives, then those are variables they might have to embrace. Because they — we — know Hillary Clinton will nominate only judges and justices committed to a malleable Constitution.
And it’s not really that the Ninth’s decision on concealed permits is uniquely flawed. It’s terrible, yes, in context of how gun laws have evolved in California. But as a standalone piece of justice, it’s really quite dazzling.
Under California law, residents have to show “good cause” to carry a concealed handgun. Decisions about what amounts to “good cause” are made by county sheriffs, who are empowered to dismiss applications based solely on legitimate concerns about personal safety.
What’s particularly interesting about the case, brought by gun owners denied permits in the counties of San Diego and Yolo (just west of Sacramento), is how the majority applied states’ rights — a darling of principled conservatives at the heart of the #neverTrump movement — to the Second Amendment.
As Bill Clinton-appointee Judge William A. Fletcher wrote, “We hold that the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” Indeed, regarding concealed guns, legislators may enact “any prohibition or restriction a state may choose.”
Several other circuits have adopted similar views. In fact, even the beloved Scalia, who wrote the 2008 landmark opinion overturning Washington D.C.’s ban on handgun ownership, conceded — the clear “shall not be infringed” text notwithstanding — there are limits to the Second Amendment.
So the California legislature took the SCOTUS majority at its word. Well, fine, if that’s how lawmakers want to play it. Defenders of the restriction can argue if sheriffs are unreasonable, voters can replace them with someone with a more charitable view of “good cause.”
The immediate problem is, while this case was working its way to the appeals court, California banned carrying guns openly. So law-abiding Golden State gun owners can’t carry openly, and they are at the mercy of sheriffs about whether they can legally carry a hidden gun.
Dissenters noted vigorously that allowing both laws to stand trampled on the “keep and bear arms” provision of the Second Amendment, essentially repealing it altogether. The majority coyly pointed out both laws were not before the court, but only the one governing concealed carry.
Fascinating.
Thus did a reliably left-leaning court apply a states’ rights cudgel to a right expressly mentioned in the Constitution. And yet just last year, when certain states demanded to retain for themselves the right to decide a matter completely unmentioned in that same hallowed document — who can legally marry whom — SCOTUS, over Scalia’s eloquent objection, recognized a new blessing of liberty hiding there in the penumbra.
Funny how state’s rights work. Conservatives, who might yet regard the billionaire megalomaniac blowhard reality TV star and combover king as the unlikeliest of cavalries coming to the rescue, aren’t laughing.
