Ripping Apart the Second Amendment

American Spectator - Monday June 13, 2016

by Wlady Pleszczynski

Last week, in the case of Peralta v. County of San Diego, the U.S. Court of Appeals for the Ninth Circuit upheld the California law that requires applicants for concealed carry permits to show “good cause” — i.e., a need specific to the person — in order to obtain such a permit. The law leaves to county sheriffs how to define the term “good cause.”

California law doesn’t bar home ownership of firearms, but it does prohibit transporting loaded firearms even when going to or from a target range. It also exempts security guards and the like.

Sustaining a lower court’s decision upholding the California law, the Ninth Circuit could have limited its ruling by finding, as some other courts have, that the “good cause” requirement is reasonable. But it didn’t. The Ninth Circuit (the most liberal in the nation, and the most reversed by the Supreme Court), went far beyond to create a direct challenge to the Second Amendment. It held that “…the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.”

Most of us thought that this matter was disposed of by the late Antonin Scalia’s opinion in the 2008 opinion in District of Columbia v. Heller.

Before Heller the District of Columbia has been a nirvana for gun controllers and gun banners. D.C. law prohibited not only carrying a loaded firearm on his person, but went so far as prohibiting anyone from having one in their home. (The D.C. government has, since Heller, tried to get the same result it had pre-Heller by a variety of equally invalid laws.)

Scalia’s opinion in Heller seemed to resolve the matter in clear terms, based not only on Supreme Court precedent but going back to the laws and practices of Colonial America. In Heller, the Supreme Court ruled that the Second Amendment codified a pre-existing right of the individual to protect himself, his family, and his home and thus not limited by the prefatory language about a “…well-regulated militia.”

Heller also recognized:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

That, of course, is common sense. No one has the right to own, for example, a machine gun so the federal government controls such ownership by requiring a potential owner to pay a specific tax on it, ensuring thereby that the weapon is registered.

The Ninth Circuit, in Peralta, conceded that even the California law allowed people to have loaded firearms in their homes. And it specifically left open the question of openly carrying loaded firearms.

The Peralta decision is sure to be appealed, as the Ninth Circuit judges clearly desired in crafting their decision. It will come to the Supreme Court next year, after the next president has the opportunity to appoint a successor to Scalia. These judges are banking on that because the Supreme Court may, at that point, have a clear liberal majority.

Peralta doesn’t limit the concealed carry right: it says no such right exists under the Second Amendment. They are comprehensively wrong, as a brief examination of the necessary effects of the ruling show.

Scalia’s opinion in Heller says that the Second Amendment codified an existing right of the individual to protect himself, his family and his home. The Ninth Circuit in Peralta cancels that right in at least the following circumstances.

If you don’t have the right to concealed carry, you don’t have the right to protect yourself and your family anywhere outside the home. If the Ninth Circuit is correct, you thus don’t have a right to protect yourself or your family from carjacking, from armed robbery on a city street, from an assailant who attacks you in a restaurant, a movie theater, or anywhere else in public. You are left helpless against a shooter inside a church.

There are many more examples, too many to catalogue in a single column such as this, but one stands out at this moment. ISIS has claimed the terrorist attack on a gay nightclub in Orlando that took at least fifty lives. If one or more of the people there had been armed, the death toll would certainly have been much less.

The Ninth Circuit has, at least in its jurisdiction — which includes not only California, but also the states of Nevada, Arizona, Oregon, Idaho, Montana, and Washington — negated the Hellerdecision which states that every American has the right to self-defense in all fifty states.

To find that Heller does not protect the right to concealed carrying of a firearm isn’t merely incorrect. To do so does nothing more than apply liberal ideology that is entirely inconsistent with the Second Amendment. Americans have the right — and the duty — to protect themselves and their families in public as well as in their homes. That right is now directly threatened by Peralta.

When the Peralta decision comes to the Supreme Court, it will be an opportunity for the liberals on the high court to reverse Heller. And it could happen. It will be almost ensured if another liberal is confirmed to sit on the Supreme Court.

We know that Hillary Clinton will appoint more Elena Kagans, Sonia Sotomayors, and Ruth Bader Ginsburgs to the Supreme Court not only because she has said she would but because to do anything else would violate her ideology. After the terrorist attack in Orlando this weekend, her immediate reaction was to call for another “assault weapons” ban. She will always be against the Second Amendment and will only appoint justices who agree with her.

Those who are undecided about Donald Trump — and those who now believe they cannot possibly vote for him — have to understand this. Supreme Court nominations are one of the most important and long-lasting of the powers of the president.

Anthony Kennedy is 80. Stephen Breyer is 76. Ruth Bader Ginsburg is 83 and Clarence Thomas is 68. If all of them, and Antonin Scalia, are replaced by liberal ideologues, the Supreme Court could have a liberal majority of as many as seven to two. If that happens, we can kiss the Second Amendment goodbye, along with the rest of the Bill of Rights.

We know what will happen if Hillary Clinton becomes president. With Trump we at least have a chance to preserve a constitutionalist majority on the Supreme Court.

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