My American Spectator Essay on the Supreme Court’s Abandonment of the Second Amendment Is Now Out of the Paywall

June 22nd, 2014

OUR GUN-SHY JUSTICES: The Supreme Court abandons the Second Amendment is now available to read free of charge. In particular, here are eight of the leading cases where the Court denied certiorari.

1. In Williams v. Maryland (2010), the Maryland Court of Appeals limited the Second Amendment to the four walls of one’s home, finding that the right to bear arms elsewhere was “outside the scope of the Second Amendment.” Pleading for clarification from the justices, the court concluded, “If the Supreme Court…meant its holding [in Heller andMcDonald] to extend beyond home possession, it will need to say so more plainly.” The Court did not speak plainly, since it denied review on October 3, 2011.

2. In United States v. Masciandaro (2010), the Fourth Circuit Court of Appeals similarly declined to recognize a Second Amendment right to bear arms outside the home: “On the question of Heller’s applicability outside the home environment, we think it prudent to await direction from the Court itself.” Imprudently offering no direction, the Supreme Court denied review on November 28, 2011.

3. The Second Circuit Court of Appeals, in Kachalsky v. Westchester County (2012), upheld New York’s onerous handgun licensing system, which requires an “applicant to demonstrate ‘proper cause’ to obtain a license to carry a concealed handgun in public.” This “proper cause” mandates that a person jump through countless hoops to exercise his constitutional right of self defense. The Second Circuit, like its sister courts, recognized that Heller “raises more questions than it answers.” The Supreme Court let them remain unanswered and denied review on April 15, 2013.

4. In Woollard v. Gallagher (2012), the Fourth Circuit Court of Appeals upheld Maryland’s handgun licensing rules that limit the right to carry a concealed weapon to those who have proven a “good and substantial reason.” In the absence of clear standards, the judges “merely assume[d] that the Heller right exists outside the home.” Letting that assumption stand, or maybe not, the Supreme Court denied review on October 15, 2013.

5. In Chardin v. Police Commissioner of Boston (2013), the Massachusetts Supreme Judicial Court upheld the Commonwealth’s firearm licensing statute, which requires an applicant to show a “good reason to fear injury to his person or property.” The ruling found that this high burden “does not infringe on a right protected by the Second Amendment.” Without comment, the Supreme Court denied review on November 4, 2013.

6 & 7. In National Rifle Association v. McCraw (2013), the Fifth Circuit Court of Appeals upheld a Texas law denying the right to carry handguns outside the home to those between the ages of eighteen and twenty. The court based its ruling on a previous decision, NRA v. Bureau of Alcohol, Tobacco, Firearms, and Explosives (2012), finding constitutional a federal law that bans adults between those ages from purchasing handguns. Six judges from the court who dissented on the latter case wanted it to be reheard and found the implications of the majority’s reading of Heller “far-reaching” and “simply wrong.” They lost by a margin of one vote. Right or wrong, we cannot know—the Supreme Court simply denied review of both cases on February 24, 2014.

8. Drake v. Jerejian (2013) is the most recent appellate decision that upheld a draconian limitation on the right to bear arms. New Jersey is a “may issue” state, meaning that a license to carry a firearm outside the home may only be granted if the applicant proves a “justifiable need,” as determined by law enforcement. This is a high burden, which requires the applicant to show a specific, immediate threat to his safety, and to demonstrate that the only way to avoid that threat is by carrying a firearm, as opposed to calling 911. Even assuming the police chief grants the permit—which seldom happens—the process is not over. Next, the applicant must appear before a judge to state his case. To make it even tougher, the local prosecutor can oppose the permit. And even if the applicant can navigate this labyrinth, the permit is only valid for two years, and the process must be begun over from scratch. If the right to keep and bear arms means anything outside the home, this gauntlet could not possibly be constitutional. Yet, remarkably, the Third Circuit Court of Appeals upheld this tortuous process. The impossible-to-satisfy burden of seeking the approval of two branches of New Jersey’s government, the court found, “does not burden conduct within the scope of the Second Amendment.” Effectively, carrying a firearm outside the home is beyond the “scope” of the Second Amendment. Over a strong dissent, the majority “decline[d] to definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home.” Continuing its practice, on May 5, 2014, the Supreme Court denied review.