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I believe in the
principle of
Due Process
Picture of JALLEN
posted
National Review
Mitchell Rocklin

In 2008, the Supreme Court’s decision in District of Columbia v. Heller gave teeth to the Second Amendment, holding that the “right of the people to keep and bear Arms” did, in fact, guarantee citizens the right to “keep” arms in their home for self-defense. Yet one decade later, lower courts continue to resist following Heller. Most shocking, several federal courts of appeals have ruled that whatever the Second Amendment says about the right to “keep” arms in your home, it does not guarantee lawful American citizens the right to “bear” arms in public for their self-defense.

That position is contrary to the Second Amendment’s text, history, and Supreme Court precedent interpreting that text and history. Yet the High Court has thus far sat out of the debate, declining to authoritatively state whether the Second Amendment means what it says and guarantees a right to self-defense both at home and in public.

Fortunately, all of this may be about to change for the better. Last June, Justice Thomas, joined by Justice Gorsuch, lamented the Court’s refusal to make clear that the Second Amendment applies outside the home, criticizing his colleagues for imposing a “hierarchy by selectively enforcing its preferred rights” like the First Amendment but underenforcing the Second Amendment. He described the lower court’s opinion as “indefensible” and the Supreme Court’s refusal to review Second Amendment cases as “inexcusable.”

One month later, the D.C. Circuit — considered by many the second-most-important court in America — disagreed with other federal courts of appeals and invalidated the District of Columbia’s “good reason” or “may issue” regime for licensing the public carry of firearms because that regime denied almost all law-abiding citizens the right to carry firearms in public for self-defense. Because the D.C. Circuit had created a “circuit split” — a division in authority among the appellate courts, the most important criterion for Supreme Court review — many observers thought the Supreme Court would finally decide whether the Second Amendment does indeed guarantee ordinary citizens the right to “bear Arms” in public. Their hopes were dashed: The District of Columbia government declined to appeal the ruling to the Supreme Court, fearful of what an adverse ruling might do to their restrictive gun laws.

Fortunately, in the coming months the Court will likely review multiple petitions presenting the question whether the Second Amendment’s guarantee that the public may “bear Arms” really means that ordinary Americans may carry firearms in public for self-defense. The Court would be wise to defer ruling on the first petition presented to it, instead biding its time until one of the other petitions in the pipeline lands in the Court — and presents the question more ably and cleanly.

The first petition, Rothery v. Blanas, will be considered during the justices’ private conference early next month. This petition presents a poor vehicle, and the Court should avoid it. The case was filed in the lower courts about ten years ago, and the factual record is stale. For example, lawyers opposing the petition have argued to the Supreme Court that one of the two plaintiffs in the case already has a permit to carry a firearm in public, and that the defendant sheriff grants licenses at higher rates than the sheriff did when the complaint was filed a decade ago.

Another critical weakness of the Rothery petition is its muddled presentation of the issues: The petition presents not only the Second Amendment question, which the Court must urgently decide, but also a Fourteenth Amendment equal-protection challenge based on the allegation that retired peace officers and the sheriff’s “political supporters” receive preference in the granting of carry permits. The Second Amendment question is too important to have the parties’ briefing distracted by another legal question of secondary importance.

While the Court might do well to grant Rothery if that were the only case on the horizon presenting the Second Amendment question, that is unlikely to be the case. Another petition is expected later this year or early next year out of the Third Circuit case Rogers v. Attorney General, New Jersey. That petition, in a case being litigated by experienced Supreme Court and Second Amendment lawyers, would also present the critical question relating to citizens’ Second Amendment right to carry firearms. If granted, the petition could be argued next fall, in Justice Kavanaugh’s first full term at the High Court. The Rogers case presents an excellent vehicle for the Court’s review.

In 2015, Justice Thomas, joined by the late Justice Scalia, lamented that the lower courts’ “noncompliance with [the Court’s] Second Amendment precedents” had the effect of “relegating the Second Amendment to a second-class right.” Now, with the Court restored to a full complement of justices and a square circuit split finally presented to it on the most critical outstanding question concerning the scope of the Second Amendment, the right of the people to not only “keep” but also “bear” arms for self-defense may finally be vindicated.

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Luckily, I have enough willpower to control the driving ambition that rages within me.

When you had the votes, we did things your way. Now, we have the votes and you will be doing things our way. This lesson in political reality from Lyndon B. Johnson

"Some things are apparent. Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible." - Justice Janice Rogers Brown
 
Posts: 48369 | Location: Texas hill country | Registered: July 04, 2005Reply With QuoteReport This Post
Member
Picture of bigdeal
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Should be fun to watch. Regardless the merits of the case, I bet I can predict how Kagan, Sotomayor, Ginsburg, and Breyer will vote. They could probably enter their votes right now and avoiding having to hear deliberations. Wink


-----------------------------
Guns are awesome because they shoot solid lead freedom. Every man should have several guns. And several dogs, because a man with a cat is a woman. Kurt Schlichter
 
Posts: 33845 | Location: Orlando, FL | Registered: April 30, 2006Reply With QuoteReport This Post
Gracie Allen is my
personal savior!
posted Hide Post
Does anyone know if the Rogers case has made it past the full Third Circuit yet? According to the Association of Rifle and Pistol Clubs of New Jersey, a three-judge panel from the Third has already shot it down. There doesn't seem to be anything on the Third Circuit's website.
 
Posts: 27291 | Location: Deep in the heart of the brush country, and closing on that #&*%!?! roadrunner. Really. | Registered: February 05, 2008Reply With QuoteReport This Post
Little ray
of sunshine
Picture of jhe888
posted Hide Post
I hope the right case comes along. And then gets taken up on cert. And then gets decided correctly.

I am encouraged that all of that will go our way, but there are many steps to navigate between here and there.




The fish is mute, expressionless. The fish doesn't think because the fish knows everything.
 
Posts: 53118 | Location: Texas | Registered: February 10, 2004Reply With QuoteReport This Post
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