Whenever the Supreme Court whiffs on a chance to defend the Second Amendment, as it did this week in two separate cases, I’m reminded of Justice Clarence Thomas’s powerful words: “The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’”
After the Court’s 2008 District of Columbia v. Heller ruling held that the Second Amendment has always been an individual right, and after its 2010 McDonald v. City of Chicago decision held that the Fourteenth Amendment means it “is fully applicable to the States,” many states and cities nonetheless continued to chip away wherever they thought they could get away with it. Lower-court judges too often let them.
Thomas, for one, is fed up with it, but it keeps happening, and the Supreme Court sometimes passes on opportunities to defend not just the gun rights of millions of Americans but its own integrity as states and lower judges ignore its rulings.
Case in point: He wrote his “second-class” assessment — not for the first time — in June 2022 in New York State Rifle and Pistol Association v. Bruen, which struck down New York’s “may issue” concealed carry permit regime, under which authorities could deny an application for a permit simply because they didn’t think the applicant showed sufficient cause.
Within a month, New York passed a law specifically designed to circumvent the Bruen decision, and the Supreme Court declined to hear a challenge to it.
Justices Samuel Alito and Neil Gorsuch joined Thomas in publicly dissenting from the Court’s decision to decline appeals of anti-gun laws in Maryland and Rhode Island. The latter state, like 13 others and DC, bans so-called “high-capacity” magazines. Similar to “assault weapon,” that is a scary-sounding euphemism chosen by anti-gun leftists to make their gun-grabbing position seem reasonable. What they refer to are actually standard-capacity magazines that hold more than 10 rounds. AR-15s were designed to hold 30 rounds, while even many, if not most, pistols were designed with magazines holding more than 10. In Rhode Island, it’s now a felony to possess something that came with a firearm from the manufacturer.
The First Circuit Court pompously declared that standard-capacity magazines aren’t necessary beyond “Hollywood-inspired scenarios in which a homeowner would need to fend off a platoon of well-armed assailants without having to swap out magazines.” It’s grossly ironic that Hollywood, which is so often used to justify gun-grabbing, is now somehow the only rationale available to law-abiding gun owners.
The most interest and consternation, though, is over a 2013 Maryland law that bans AR-15s, AK-47s, and a .50 caliber rifle — a.k.a. “assault weapons.” Similar laws are on the books in California, Connecticut, Delaware, Illinois, Massachusetts, New Jersey, New York, and Washington.
When writing the majority opinion in Heller, the late Justice Antonin Scalia quoted United States v. Miller, which held that the Second Amendment protects arms “in common use at the time” by law-abiding citizens. That description certainly applies to AR-15s. Nevertheless, the Fourth Circuit Court turned that logic on its head, ruling that Maryland’s ban was just fine because deciding otherwise might mean that any weapon “could gain constitutional protection merely because it becomes popular before the government can sufficiently regulate it.”
Well … yeah.
The Founders did, in fact, intend to prohibit the government from enacting such regulations, frankly, whether a gun was popular or not. They rightly believed that an armed population is the only way to secure Liberty. To the judicial activists on the Fourth Circuit, however, the left-wing desire to take scary guns from people overrides the Founders’ intent.
Justice Brett Kavanaugh admitted, “In my view, this Court should and presumably will address the AR-15 issue soon, in the next Term or two.” That’s putting it far too tepidly, even though, as a DC Circuit judge, Kavanaugh ruled that the District’s ban on AR-15s was unconstitutional. Why should infringement of the Second Amendment continue for a year or two until the justices are finally inclined to care? Why didn’t Kavanaugh just go ahead and make himself the fourth justice required to accept a case? He rationalized that the First Circuit recently upheld Massachusetts’s ban, and “several other Courts of Appeals” are considering similar cases. Let those play out, he said.
“I would not wait to decide whether the government can ban the most popular rifle in America,” Thomas countered in his blistering dissent. “That question is of critical importance to tens of millions of law-abiding AR-15 owners throughout the country. We have avoided deciding it for a full decade.”
“Further percolation is of little value when lower courts in the jurisdictions that ban AR-15s appear bent on distorting this Court’s Second Amendment precedents,” he added. “I doubt we would sit idly by if lower courts were to so subvert our precedents involving any other constitutional right. Until we are vigilant in enforcing it, the right to bear arms will remain ‘a second-class right.’”
He’s exactly right. The Founders meant what they said: “The right of the people to keep and bear Arms, shall not be infringed.” It’s high time the Supreme Court more fully affirmed that.
