On October 17 the Associated Press claimed that the right to use a gun to defend one’s home was created via decisions from the Supreme Court of the United States (SCOTUS) that were handed down in 2008 and 2010.
In the first of these decisions–District of Columbia v Heller (2008)–the SCOTUS struck down the DC gun ban, thus showing that the right to keep and bear arms was not limited to states but applied to federal districts as well. Then, in McDonald v Chicago (2010), the SCOTUS ruled that the same rights that were protected from state and federal district interference were also protected from city interference. They did this by ruling that Second Amendment rights are incorporated under the 14th Amendment.
In neither of these decisions were rights created. Rather, rights were defended. Yet AP is claiming these two cases–when taken together–created the right for a citizen to use a gun to defend his or her home.
The AP did this by explicitly describing Heller and McDonald as “two landmark decisions that established a nationwide right to defend one’s home with a gun.” By so doing they entered a world gone mad; one in which The New York Times and Los Angeles Times maintain that the individual right to keep and bear arms–with or without the reference to defending one’s home–was created by the SCOTUS in 2008.
The LA Times first made this claim on June 27, 2008–the very day after the Heller ruling was handed down. They reiterated their contention on May 22, 2015 and again on September 23. When they reiterated it in September they claimed the SCOTUS had “erred” in their interpretation of the Second Amendment, thereby creating an individual right in place of the collective right our Founding Fathers intended.
The NYT took this same tact in 2012 when they relied on commentary from judges like J. Harvie Wilkinson III, who contended that Supreme Court Justice Antonin Scalia “read an ambiguous constitutional provision as creating a substantive right” for the Heller decision. Wilkinson thereby described the Heller decision as a new form of “judicial activism.”
It should be noted that the NYT and the LA Times have been calling the Heller decision into question for years as a way to keep it alive so it might be revisited by a future, anti-gun SCOTUS. And the AP’s contentions regarding the so-called creation of the right to defend one’s home with a gun come in light of high hopes that the Supreme Court will hear a challenge to the City of Highland Park’s “assault weapons” ban.
That challenge is being brought by Dr. Arie Friedman and the Illinois State Rifle Association, both of which claim the “assault weapons” ban is unconstitutional.
The case comes to the SCOTUS after the “assault weapons” ban was upheld 2-1 by an appeals court. The SCOTUS had the chance to take up the case last week, but did not. If they do chose to take it up this week an announcement could come as soon as Monday.
Follow AWR Hawkins on Twitter: @AWRHawkins. Reach him directly at firstname.lastname@example.org.