Scalia’s Dark Legacy: First Circuit Court Rules Against the Right to Keep and Bear Arms

P. Gardner Goldsmith | November 28, 2018
Font Size

Some of you might agree that this new story makes one feel like Cassandra, the mythical figure who was doomed to warn people of impending trouble, merely to watch them disregard said warnings.



On Nov. 12, as part of our three-part series on the right to keep and bear arms, MRCTV published a written piece and video that mentioned the dangerous legacy of U.S. Supreme Court Justice Antonin Scalia’s majority opinion in the 2007 “DC v. Heller” decision.

In it, I noted that Scalia spent over 60 pages supporting the idea that the Second Amendment to the U.S. Constitution is there to protect an individual's right to keep and bear arms, not a so-called “group right.” I also noted that he didn’t need to devote that much space to the citations; he could have simply used logic: that rights are inherent to individuals and preexist the state. The word “group” is merely an appellation affixed to more than two people, and a group is always reducible to the individuals who are associating. Therefore, groups can’t have “rights,” only individuals have rights. This is simply axiomatic.

This might be considered a minor quibble with Scalia save for the final phase of his opinion -- the section in which the judge essentially wrote that, yes, the right to keep and bear arms is an individual right, but, like all rights, it can be attenuated.

In other words, it “is not unlimited.”

Which not only is profoundly incorrect, but completely destroys the very definition of “rights” in the first place.

As I noted on the radio at the time, and have noted frequently since, that decision was actually one of the worst in U.S. history, and would lead to various branches of various levels of government claiming that they could infringe the right to keep and bear arms if they claimed they had a “compelling state interest” – which is usually the way tyrants try to justify attacks on rights. And, of course, since all courts are merely arms of the state, and Scalia’s ruling has set the poisonous precedent, many of us knew that many government legislatures and courts would disregard the actual wording of the Second Amendment, and, instead, continue to pass and uphold patently unconstitutional gun-restriction statutes because, well, Antonin said it was okay.

Which brings us to the latest ugly confirmation of the prediction, a ruling by a three-judge panel from the Federal First Circuit Court of Appeals on the case of “Gould v. Morgan,” a gun rights case revolving around a Massachusetts gun license statute and various city ordinances within the state.

Here’s the story.

Massachusetts is one of only eight “may issue” states. It stands in this ugly anti-rights arena along with Hawaii, Maryland, Delaware, California, Connecticut, New Jersey, and New York (and, sometimes, Rhode Island). Under “may issue” statutes, the state infringes on the right to keep and bear arms by saying it can determine whether you can carry a firearm based on the government’s – not your – determination of whether you need one. In other words, they are “may not” issue.

Which is, of course, flagrantly unconstitutional.

And in Massachusetts, the gun licensing statute allows each city’s politicians to come up with their own rules regarding whether your “need” is sufficient.

Guess where that leaves residents of the extremely collectivist Boston and Brookline?

Yep. Both cities set standards so high, it’s virtually impossible to get a license. Residents had a false choice: remain unarmed and conform to the law, or be armed and in danger of arrest.

In response, six Boston and Brookline residents filed suit against the acting Chief of Police for Brookline, the Police Commissioner of Boston, and the Attorney General of Massachusetts, correctly citing this violation of their rights.

And the three-judge panel offered the equivalent of laughter, denying their claim and finding in favor of the city governments infringing on the right to keep and bear arms.


And what’s at the heart of the decision?

You got it: Scalia’s majority decision in the Heller case.

In fact, the First Circuit triumvirate mentioned Heller 14 times in 20 pages. The trio created an arbitrary distinction between protecting oneself in a home and outside a home, and then proceeded to claim that outside the home, people should rely on police to protect them.

Which, of course, reminds us that:

  1. The average police response time to calls of violent crime in the US is cited as being between ten minutes, and…
  2. Agents of the state have argued before the DC Appeals court that the state has absolutely no obligation to protect any individual at all. And the court agreed, and…
  3. If the state doesn’t do its job, its officers often claim “sovereign immunity” from wrongdoing or doing a poor job.

And, of course, the classic line is well known: when seconds count, the police are just minutes away.

So much for that myth about “first responders.”

Armed citizens are more likely to be first responders than police.

Yet the elite in the First Circuit not only have the gall to completely disregard the meaning of the Second Amendment, to disregard the meaning of the word “right,” but they tell people they should rely on agents of the state to protect them.

Surely, the people in the Warsaw Ghetto found that it was agents of the state who were the greatest threat, as did Revolutionary Era Americans, as did Russians, Germans, Turks, Cambodians, Chinese, and many, many millions of others.

Perhaps its time more people pay attention to what these robed Robespierre’s decide in their courts.

Because the decisions have bearings on our rights to protect our own lives.

The plaintiffs in Massachusetts get it, and see how little the government cares. They plan on appealing it to the U.S. Supreme Court.

One wonders whether the current batch of justices – some of whom were on the Heller case, will simply parrot Scalia, and, once more, mock the very concept of inherent human rights.