Wednesday, May 22, 2019

The Next Supreme Court Gun Case- Either a Landmark or Nothing

It is amazing how a subject can be incredibly simple and incredibly complex at the same time.   The greatest example of this is the United States Constitution- in particular the “Bill of Rights.”  In grade school we are taught of the Bill of Rights; the first ten amendments to the Constitution.   We were taught in very simple terms what these Amendments meant- Freedom of Speech, Freedom of Religion and so forth.   By high school we learn that although these rights are enumerated, there are
caveats.  We are taught, for example, that Freedom of Speech does not include shouting “fire in a crowded theater.”  By college or early adulthood, for the most part we understand just how “complex” the Constitution and the Bill of Rights are.   Rather than being something that “everyone” can understand, Constitutional Rights have become a subject which lawyers and judges cannot agree on, and deciding what the Constitution means falls to the Nine Supreme Court Justices seated in Washington, D.C.

This fall, the Nine Supreme Court Justices are scheduled to take up a case which may have a profound impact on what the Second Amendment actually means.   This will be the first major case since Heller (2008) and McDonald (2010).   The District of Columbia v. Heller, 554 U.S. 570 (2008), was the landmark decision that held (for the first time) that the Second Amendment was an “individual” right, not a collective right or one which only applied to “the Militia” or membership in “the Militia.”  McDonald v. Chicago, 561 U.S. 742 (2010), held that the Second Amendment applied to the States.   These two cases, however, have left a great number of unresolved issues.  Now, the Supreme Court is poised to take up one such issue.

New York State Rifle and Pistol Association v. City of New York, New York has the potential to be another landmark decision, or “much ado about nothing.”  Potentially the case could decide the meaning of the words “bear Arms” as used in the Second Amendment.  At issue is a New York City regulation that prohibits any person with a license to keep a firearm in their home from transporting that firearm to any place other than one of the seven shooting ranges within the city limits of New York.   Under this regulation, if one has a second home in New York it is illegal to take the gun licensed to be in one home to the second home- even unloaded, in a locked case with ammunition locked up separately.   Under this regulation it is illegal to take a handgun licensed to a home in New York City to a shooting range outside the city.   Under the regulation it is illegal to participate in a shooting completion outside the City of New York with a handgun that is licensed to be in a home in New York City.    Under this regulation it is even illegal to take a handgun licensed to in a home to a gunsmith- even a gunsmith inside the City of New York- without special permission of the Chief of the Police Department License Division.

The New York State Rifle and Pistol Association (NYSRPA) case states the City of New York regulation is unconstitutional in that it violates the Second Amendment “Right to Keep and Bear Arms,” it violates the Commerce Clause of the Constitution and it violates the Constitutional “Right to Travel” – an unenumerated right, but nevertheless a right guaranteed by the Constitution. 

The “Gun Control Crowd” has weighed in with an interesting set of arguments.   The Brady Foundation is asking the Supreme Court to dismiss the case, stating that New York City will be changing the regulation and therefore the case will be moot.   New York City has yet to make any changes to the regulation.   The second argument- both of the Brady Foundation and the Giffords Law Center states that this case does not deserve “strict scrutiny.” They argue that the City of New York’s concern about having “more guns on the street” outweighs the Constitutional questions involved and “intermediate scrutiny” as applied by the Second Circuit Court of Appeals is appropriate.   However, neither organization nor the City of New York can explain how forcing gun owners to only use ranges in New York City and not take guns out of the city reduces the number of guns on the street.   Logic would seem to indicate that allowing gun owners to take licensed, unloaded, locked guns to homes or ranges outside of the City would reduce the number of guns on the streets inside the City of New York. 

The final argument of the Brady Foundation is that this case could result in the “creation of a new right.”  For some reason, the Brady Foundation believes that the right to “keep AND BEAR Arms” only involves keeping those arms within one’s home.   This argument of course does not hold with Heller or McDonald.   The Supreme Court held that “bearing arms” means to carry those arms outside of one’s home for the purpose of self defense or for other lawful purposes.   Although the Court ruled that the need for self defense was most acute in one’s home, the Court in no way limited self-defense to the home.

It seems this case has several possible outcomes; two of which would place this case into the "much ado about nothing" category.   New York City could actually change the regulation.   Should they change the regulation and allow licensees to travel outside of New York City with their firearms. this case would likely be dismissed. 

The second outcome, one hoped for by the Brady Foundation and Giffords Law Center- is that the Court leaves the ruling of the Second Circuit intact and makes no ruling on the issues of what level of scrutiny to apply to this case.   The court could also state that "intermediate scrutiny" is appropriate- in which case there is very little chance of ever overturning an "anti-gun" law if the state pulls out the "public safety" card.

It is also a possibility that the Court will decide this case by addressing the "commerce clause issues" only.   The Court could invalidate the regulation by saying it restricts interstate commerce by preventing the people of New York from freely using shooting ranges in New Jersey or other areas outside of New York City.  In theory, the Court could "skirt" the Second Amendment issues in the case and make no ruling on whether the regulation violates the right to "bear arms"

The best possible outcome, is that the Court finally states in no uncertain terms, that a political entity cannot ban the ability for an individual to "bear arms" outside the home for self defense.   This would then finally open the door for action against states like California, who so severely restrict the ability to carry a firearm that in effect the bearing of arms is banned. That would make this a "landmark" ruling, while in the other scenarios, the case will fade to "nothing."   Of course, this case will have to be heard.  As of this time, this case is scheduled to be heard in October 2019 and it may be June 2020 before we find out how the Court will rule.


Wednesday, May 15, 2019

A Nation Reborn or The Gathering of the Flock

On May 14, 1948 an event occurred that had never happened in the history of the planet- a nation which had been destroyed by Hadrian in 136 AD, and a people who had been scattered to the four winds returned- and declared their Independence.  On May 15, 1948, the British Military lowered the Union Jack throughout the “Mandate of Palestine” (which was not then, nor anytime before then a nation) and turned over forts and arms- not to the roughly 500,000 Jewish Holocaust survivors and immigrants from countries which had slaughtered Jews for centuries, who had bought swamp and desert and turned it into fields of grains and orchards of fruit- but to the 50 Million Arabs who had refused the United Nations partition plan and instead pledged before the UN nothing less than the eradication of all remaining Jews or nothing less than a rebirth of the Holocaust and completing Hitler’s “Final Solution to the Jewish Question.”

On May 15, 1948, the Israeli War of Independence began. 

The Prophet Jeremiah (23:3) had foretold  the Lord “will gather the remnant of My flock out of all the countries where I have scattered them and will bring them back to their own land which I, the Lord, hath given them.”  

Israeli F-16’s in flyby of Masada - IDF ImageThe Army’s of Egypt, Saudi Arabia, Iraq, Jordan, Syria and Lebanon may have expected “the remnant of My flock” to be like “lambs to the slaughter” - and every military leader and expert in the world expected Israel to we wiped from the map within days or weeks.  Instead of meek and timid “lambs” the united Arab armies encountered a “flock” that was more like “Bighorn Rams” in the autumn rut.  The small bands of Haganah, Palmauch, and Irgun fought to hold every inch of land and in many places fought to the very last man, woman or child.  

The Israelis of course won the War of Independence, and it would be nice to end with “they all lived happily ever after,” but in many ways that war has continued in battles like the Six Day War, or Yom Kippur, or the untold number of times organized armies of Arab states, and terrorist organizations have attempted to complete “the Final Solution.” 

And yet, Israel remains. 

"I will also raise up shepherds over them and they will tend them; and they will not be afraid any longer, nor be terrified, nor will any be missing," declares the LORD. - Jeremiah 23:4