Will Rogers once said, "If you find yourself in a hole, stop digging." These are words that the gun control movement might want to take to heart.
One of the great political ironies is the fact that, the more that the anti-gun forces try to restrict or eliminate gun rights, the more that they force the courts to confront the language of the Second Amendment, and to expressly define these rights to strike down restrictions.
The biggest obstacle that the anti-gun forces have is the fact that the language of the Second Amendment declaring that the "right of the people to keep and bear arms shall not be infringed" is direct, unambiguous, and absolute. The claim that it merely authorizes a militia is just a desperate bit of sophistry. The "militia" argument ignores the fact that, at the time the Constitution was written, a "militia" was an ad hoc assembly of citizens into a military force, which necessitated private gun ownership since there were no publicly maintained armories and every citizen was expected to furnish their own weapon. Ironically, the ruling in the 1939 Miller case, which is often cited in support of the militia interpretation, referred to the militia language to find that possession of a sawed-off shot gun was not protected since it is not the sort of weapon that the military would use, and thus implied that the military-style assault rifles that liberals so abhor are protected.
Historically, the Supreme Court of the United States has preferred to ignore the Second Amendment, and by the absence of any express holdings on the extent of the right, allowed government some space in which to craft laws that were widely accepted as sensible regulation of gun ownership. For example, background checks, the prohibition on the ability of felons and maniacs to buy guns, age requirements, and restricting machine guns and artillery are limitations that most people approve of. But as the anti-gun people have pushed harder and harder to eliminate or severely restrict all gun ownership, the court has been forced to act, and the outcome has not been to the liking of anti-gun liberals.
The current expression of Second Amendment rights began with the Heller case in 2008, striking down a law in which the District of Columbia had attempted to effectively outlaw the private ownership of handguns. In Heller, SCOTUS for the first time expressly delineated a private right to gun ownership by citizens, rejecting the "militia" argument. Later cases extended the ruling to the states.
In the current case under consideration by SCOTUS, a New York law restricting the issuance of concealed carry permits to only those persons who can convince the government that they have a special need to carry a gun in public, is being challenged. In application, this law has been used to deny permits to almost everyone who applied. My prediction: The court will rule that concealed carry permits must be issued unless the government can delineate specific and reasonable grounds why the application shouldn't be granted. Reasonable training and competency requirements may be required, but arbitrary rejection of an application will be prohibited.
Most of us, including the conservative justices, don't want to live in a "Wild West" environment in which most of the public is armed. Most of us can think of people who, although nominally qualified, should not be carrying a gun due to temperament or poor judgment. But the Second Amendment says what it says, and the justices are bound to observe the terms of the Constitution, and not just implement their own policy preferences. Legislative overreach pandering to the anti-gun people may force the court to act to reach a conclusion that they would have preferred to avoid.
The liberal agenda has also encouraged the proliferation of guns in other regards. The last couple of years have seen gun sales skyrocket as more of the public, including increasing numbers of women and minorities, purchased guns for self-protection against crime and civil disorder. The increase in violent crime, the rioting which the left has cheered, together with "catch and release" justice, and acts like the effective decriminalization of "minor" crimes like auto burglary and shoplifting, has frightened the public and made them feel vulnerable. Proposals to defund or abolish the police have convinced many that they must defend themselves. The more lawless our society becomes, the more the demand for guns will grow.
My advice? Instead of indulging your emotional loathing of guns and forcing the court into making decisions you won't like, you might instead try working to increase public safety to reduce the demand for self-protection. Abandoning the war on the police, the campaign to free criminals, and your cheerleading for "good" rioting, would be a start.
You'll have to make a choice: Actually act to reduce the number of guns, or just engage in empty political gestures to show how much you care.
Try to "stop digging" now. Δ
John Donegan is a retired attorney in Pismo Beach who is not quick enough on the draw to survive for long in the Brave New World the Democrats are creating. Send a response for publication to [email protected].