Trump — Or Clinton — Will Decide Fate Of The Second Amendment
|The Second Amendment|
The Supreme Court will soon have an opportunity to review a federal appeals court’s decision Thursday that the government can ban all concealed firearms outside the home.
As the U.S. Court of Appeals for the Ninth Circuit summarized this case, Peruta v. County of San Diego:
The plaintiffs here filed a federal lawsuit, arguing that the Second Amendment entitles them to carry a firearm outside their home. They did not argue one way or the other whether the state can require them to get a license, or whether they can carry openly instead of concealed.
Former U.S. Solicitor General Paul Clement and accomplished gun-rights attorney C.D. Michel — with the full backing of the National Rifle Association and the NRA’s attorney in this case, former U.S. Assistant Attorney General Charles Cooper — instead carefully designed the case to ask the simple question of whether the Second Amendment right to keep and bear arms is a right that can be claimed in any form outside a person’s home.
In answer to that question, the Ninth Circuit wrote, “We conclude that the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.”
Despite the fact that a decade ago, at least 74 percent of Americans believed that ordinary citizens have the right to own guns, the Supreme Court had never needed to decide a case asking that question.
Then in 2008, the Court in District of Columbia v. Heller struck down Washington, D.C.’s ban on handguns in the home, holding that the Second Amendment secures an individual right for American citizens who are law-abiding and peaceable to own personal firearms and keep them ready for use in their homes.
In 2010, the Supreme Court held in McDonald v. Chicago that this individual right is also a fundamental right, and as such applies with full force through the Fourteenth Amendment as a right that Americans can assert against state and local governments. In doing so, the Court struck down a Chicago ordinance that banned handguns in the home in the same manner as the Washington, D.C. ban struck down in Heller.
But both of those cases were 5-4 decisions from the Supreme Court. Change just one vote, and the Second Amendment would be effectively erased from the Constitution.
The Court’s reasoning in both Heller and McDonald — involving the constitutional importance of the right of self-defense and even being able to band together against a tyrannical government — would seem to apply with even greater force outside the home than inside, as the U.S. Court of Appeals for the Seventh Circuit held in 2012 in Moore v. Madigan.
But since carrying guns outside the home was not at issue in either of those Supreme Court cases, lower courts were still free to decide that question either way until the Supreme Court had taken such a case. So a federal district court ruled against the plaintiffs in Peruta, holding they had no Second Amendment right to carry firearms outside the home without the government’s permission.
However, a three-judge panel of the Ninth Circuit reversed that ruling in a 2-1 decision in 2014, in an exceptionally well-written opinion by a famed Reagan appointee, Judge Diarmuid O’Scannlain.
Then California Attorney General Kamala Harris became involved in the case, asking the appeals court to rehear the case en banc. For every other federal appeals court, that means all the active-service judges on the court rehear the case together. But the Ninth Circuit is so much larger than all the other federal appeals courts — covering eleven states, instead of the typical three or four, and with a correspondingly higher number of judges — that when the Ninth Circuit takes the rare step of rehearing a case en banc, it means the case is assigned to an eleven-judge panel, displacing the original three-judge panel.
One year ago, those eleven judges reheard the case. With this week’s decision, those judges cast aside Judge O’Scannlain’s opinion for the initial panel, replacing it with a decision taking a very different view of the Constitution.
The Ninth Circuit avoided clashing completely with the Seventh Circuit’s Moore decision. Doing that would make it very likely that the Supreme Court would take this case. Judge William Fletcher did so for the court by writing:
Four judges vigorously dissented, in three separate opinions. Writing the principal dissent, Judge Consuelo Callahan wrote, “The Second Amendment is not a ‘second-class’ amendment.” She quoted Heller, where Justice Antonin Scalia wrote for the High Court:
If the Supreme Court were to take Peruta, it would have the option of either reaffirming Heller, or overruling it. The Court is divided 4-4 on that issue right now, and the future of the Second Amendment will thus be determined by whoever fills the seat left vacant by Scalia’s death.
Donald Trump has already put forth a list of eleven potential Supreme Court justices, each of whom is a conservative expected to support — or even expand — Heller.
Hillary Clinton, on the other hand, has mentioned Justice Ruth Bader Ginsburg as an ideal justice. Ginsburg has twice dissented from Second Amendment rights, arguing that private citizens cannot claim a right to bear arms.
Ambassador Ken Blackwell, who serves on the NRA Board of Directors and is chairman of the board’s Grassroots Committee, commented exclusively to Breitbart News:
With a 4-4 Court, Americans’ basic rights are at stake in November.
Ken Klukowski (@kenklukowski) is legal editor for Breitbart News. Senior Counsel & Director of Strategic Affairs, First Liberty Institute and former senior legal analyst with the American Civil Rights Union. He and Ken Blackwell (@kenblackwell)are contributing authors to the ARRA News Service.
Tags: 2nd Amendment, Big Government, Breitbart News, Antonin Scalia, Constitution, Donald Trump, Hillary Clinton, Kamala Harris, Ken Blackwell, Ninth Circuit, Peruta, Ruth Bader Ginsburg, Second Amendment, Seventh Circuit, sixth circuit, Supreme Court, Ken Klukowski, Breitbart News To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service. and "Like" Facebook Page - Thanks!