SCOTUS Is Refusing To Protect the Right To Bear Arms

P. Gardner Goldsmith | December 1, 2017
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This week, the Supreme Court of the United States did something to supporters of the right to keep and bear arms, and it wasn’t good – unless one tries to look on the bright side of bad oligarchical positions.

On Monday, November 27, the court refused to hear two important appeals to lower court decisions, and both of them have a bearing on the Second Amendment.

The first, which got a smidgen of off-hand coverage from the pop media, was a case called Kolbe v. Hogan (Kolbe being the civilian, and Hogan being the Republican Governor of Maryland). It pertained to a Maryland law that banned the AR-15 and the AK 47 semi-automatic rifle, a law which was upheld by the US Fourth Circuit, and which claimed that such rifles were not “constitutionally protected.” 

That’s funny, because they’re arms, and the Second Amendment is clear. The right to keep and bear arms shall not be infringed. Period.

As Margot Cleveland notes for The Federalist:

Conversely, the Second, Seventh, and DC circuits all held semi-automatic rifles are protected by the Second Amendment, yet bans were still justified by the governmental interest supposedly advanced.

So in the SCOTUS not hearing the appeal of the Fourth Circuit ruling, we have the highest court in the nation siding with the idea that the weapons are not "constitutionally protected" at all. This is worse than merely saying that the guns are constitutionally protected but can be banned if there is a compelling state interest, but both ideas are disastrous. The Fourth, Second, Seventh, and DC Circuits held either that there was no constitutional protection for the right to carry those weapons, or that that there was a compelling state interest in banning them. Either way, we have courts espousing ideas that run contrary to the very concept of rights.

The ultimate bases of “rights” are the ideas of life and self-ownership. And in order to claim one has a right to his or her life and self, one must be able to protect oneself. The right to life is also the right to protect one’s life in self-defense. Hence, the right to keep and bear arms cannot be superseded by a group of people called politicians or anyone else. It is supposed to be untouchable. That’s why it’s called a right.

Unfortunately, a SCOTUS ruling which many conservatives mistakenly lauded has, as many libertarians (and a few conservatives) predicted, come back to bear its poison fangs.

That’s the 2008 ruling in Heller v. District of Columbia. In Heller, the SCOTUS, with the supposedly “strict constructionist” Antonin Scalia writing the majority decision, found that the right to keep and bear arms was an individual right, not, as many collectivists had claimed, a “group right” reserved for the National Guard. Of course, anyone who uses logic knows that rights are, by their nature, individual rights, and that the word “group” is merely a term applied to a gathering of individuals, who all retain their rights to be free from state coercion and are all still individuals, regardless of the label given to their number. Groups are always logically reducible to individuals, and a group can have no more rights than the individuals in it, because only individuals have rights.

Despite this, Justice Scalia spent 65 pages citing historical information backing the argument that the people of the Founding Era believed the right to keep and bear arms was an individual right. So, although he spent a lot of energy doing a good thing for those interested in history, he neglected to include the simple logic that could have been the capstone of the whole thing.

In fact, his mistake grew, for as he concluded the opinion, Scalia said, in essence, “Indeed, the right to keep and bear arms is an individual right. But as we all know, rights can be attenuated.”

Bad, bad, bad. This strange addition to the decision completely undermined the concept of rights, and I, and a few others, such as Ann Coulter, and professional wrestler Glenn Jacobs, noted it at the time.

Now, our warnings are being borne out as correct.

The Scalia Box, like Pandora’s, allows for the state to open it if it can show that the state has a compelling interest to do so. But, as mentioned, this runs counter to the concept of rights. What Scalia did was turn the right into a state-allowed privilege.

This is, of course, precisely what the Second Amendment was written to stop.

Ms. Cleveland offers an excellent point about this latest error by the SCOTUS:

With mass shootings—which while tragic, cumulatively still don’t amount to a patch on the handgun violence in Chicago in just one year—sane conversations about the constitutional right to bear arms are scarce. Now the Supreme Court has made clear it wants no part in that discussion.

The second case was called Norman v. Florida, and pertained to the arrest of Dale Norman, who was arrested in Florida while walking with a handgun in a holster outside his clothing. Florida laws “permits” concealed carry, but not open carry.

By not hearing this case, the SCOTUS affirmed the lower court’s finding in favor of the state of Florida, and, once more, undercut the meaning of the word “right.”

If one has a right to keep and bear arms, then any state command about how one will be “permitted” to do so is, by definition, an infringement of the right.

How difficult is it to see this?

Now, some supporters of the Second Amendment aren’t as worried about this ruling as I am. They believe that it might be better to see the SCOTUS put off hearing these kinds of gun cases until there are more strict-constructionists on the bench. But too often, judges don’t pay attention to the wording of their so-called rulebook of the Constitution, and feel free to make it up as they go.

That’s certainly not anything more than an oligarchy.

Welcome to the United States.