Trump — or Clinton — Will Decide Fate of the Second Amendment

Shotgun (Paul Wordingham / Flickr / CC / Cropped))
Paul Wordingham / Flickr / CC / Cropped)

Whether Americans will continue to have a Second Amendment right to own guns now depends on whether Donald Trump or Hillary Clinton wins the White House.

The Supreme Court will soon have an opportunity to review a federal appeals court’s decision Thursday that the government can ban all concealed firearms outside the home.

As the U.S. Court of Appeals for the Ninth Circuit summarized this case, Peruta v. County of San Diego:

Under California law, a member of the general public may not carry a concealed weapon in public unless he or she has been issued a license. An applicant for a license must satisfy a number of conditions. Among other things, the applicant must show “good cause” to carry a concealed firearm. California law authorizes county sheriffs to establish and publish policies defining good cause. The sheriffs of San Diego and Yolo Counties published policies defining good cause as requiring a particularized reason why an applicant needs a concealed firearm for self-defense.

In other words, California residents  must explain that they have some special need beyond a general desire for self-defense, such as having an abusive ex-husband or having received a death threat.

The plaintiffs here filed a federal lawsuit, arguing that the Second Amendment entitles them to carry a firearm outside their home. They did not argue one way or the other whether the state can require them to get a license, or whether they can carry openly instead of concealed.

Former U.S. Solicitor General Paul Clement and accomplished gun-rights attorney C.D. Michel — with the full backing of the National Rifle Association and the NRA’s attorney in this case, former U.S. Assistant Attorney General Charles Cooper — instead carefully designed the case to ask the simple question of whether the Second Amendment right to keep and bear arms is a right that can be claimed in any form outside a person’s home.

In answer to that question, the Ninth Circuit wrote, “We conclude that the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.”

Despite the fact that a decade ago, at least 74 percent of Americans believed that ordinary citizens have the right to own guns, the Supreme Court had never needed to decide a case asking that question.

Then in 2008, the Court in District of Columbia v. Heller struck down Washington, D.C.’s ban on handguns in the home, holding that the Second Amendment secures an individual right for American citizens who are law-abiding and peaceable to own personal firearms and keep them ready for use in their homes.

In 2010, the Supreme Court held in McDonald v. Chicago that this individual right is also a fundamental right, and as such applies with full force through the Fourteenth Amendment as a right that Americans can assert against state and local governments. In doing so, the Court struck down a Chicago ordinance that banned handguns in the home in the same manner as the Washington, D.C. ban struck down in Heller.

But both of those cases were 5-4 decisions from the Supreme Court. Change just one vote, and the Second Amendment would be effectively erased from the Constitution.

The Court’s reasoning in both Heller and McDonald — involving the constitutional importance of the right of self-defense and even being able to band together against a tyrannical government — would seem to apply with even greater force outside the home than inside, as the U.S. Court of Appeals for the Seventh Circuit held in 2012 in Moore v. Madigan.

But since carrying guns outside the home was not at issue in either of those Supreme Court cases, lower courts were still free to decide that question either way until the Supreme Court had taken such a case. So a federal district court ruled against the plaintiffs in Peruta, holding they had no Second Amendment right to carry firearms outside the home without the government’s permission.

However, a three-judge panel of the Ninth Circuit reversed that ruling in a 2-1 decision in 2014, in an exceptionally well-written opinion by a famed Reagan appointee, Judge Diarmuid O’Scannlain.

Then California Attorney General Kamala Harris became involved in the case, asking the appeals court to rehear the case en banc. For every other federal appeals court, that means all the active-service judges on the court rehear the case together. But the Ninth Circuit is so much larger than all the other federal appeals courts — covering eleven states, instead of the typical three or four, and with a correspondingly higher number of judges — that when the Ninth Circuit takes the rare step of rehearing a case en banc, it means the case is assigned to an eleven-judge panel, displacing the original three-judge panel.

One year ago, those eleven judges reheard the case. With this week’s decision, those judges cast aside Judge O’Scannlain’s opinion for the initial panel, replacing it with a decision taking a very different view of the Constitution.

The Ninth Circuit avoided clashing completely with the Seventh Circuit’s Moore decision. Doing that would make it very likely that the Supreme Court would take this case. Judge William Fletcher did so for the court by writing:

We do not reach the question whether the Second Amendment protects some ability to carry firearms in public, such as open carry. That question was left open by the Supreme Court in Heller, and we have no need to answer it here. Because Plaintiffs challenge only policies governing concealed carry, we reach only the question whether the Second Amendment protects, in any degree, the ability to carry concealed firearms in public. Based on the overwhelming consensus of historical sources, we conclude that the protections of the Second Amendment—whatever the scope of that protection may be—simply does not extend to the carrying of concealed firearms in public by members of the general public.

With almost a quarter of the United States under the Ninth Circuit’s jurisdiction, however, the Second Amendment effectively ends when people leave their front doors in those states.

Four judges vigorously dissented, in three separate opinions. Writing the principal dissent, Judge Consuelo Callahan wrote, “The Second Amendment is not a ‘second-class’ amendment.” She quoted Heller, where Justice Antonin Scalia wrote for the High Court:

Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of the Supreme Court to pronounce the Second Amendment extinct.

She then added, “Today the majority takes a step toward extinguishing the Second Amendment right recognized by the Supreme Court in Heller and McDonald.”

If the Supreme Court were to take Peruta, it would have the option of either reaffirming Heller, or overruling it. The Court is divided 4-4 on that issue right now, and the future of the Second Amendment will thus be determined by whoever fills the seat left vacant by Scalia’s death.

Donald Trump has already put forth a list of eleven potential Supreme Court justices, each of whom is a conservative expected to support — or even expand — Heller.

Hillary Clinton, on the other hand, has mentioned Justice Ruth Bader Ginsburg as an ideal justice. Ginsburg has twice dissented from Second Amendment rights, arguing that private citizens cannot claim a right to bear arms.

Ambassador Ken Blackwell, who serves on the NRA Board of Directors and is chairman of the board’s Grassroots Committee, commented exclusively to Breitbart News:

Today’s Peruta decision makes clear beyond any shadow of a doubt that the future of the Second Amendment and the rights of almost 100 million American gun owners now hangs on Donald Trump’s defeating Hillary Clinton for the White House. Even without speculating on how many more Supreme Court vacancies arise over the next four years, the one vacancy we have right now will be the deciding vote on whether the Supreme Court will uphold Heller, or abolish the Second Amendment.

The lawyers on the case have until September to decide whether to pursue this matter to the Supreme Court. Even if they do not, another case currently before the U.S. Court of Appeals for the Sixth Circuit — Tyler v. Hillsdale County Sheriff’s Department — is likewise expected to go before the Supreme Court next year.

With a 4-4 Court, Americans’ basic rights are at stake in November.

Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.


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