Joe Biden is most likely going to be the next president of the United States, though I hope to see every possible legal challenge mustered to ensure that the outcome of the election wasn’t decided by fraud. While a President Biden will be using the power of the executive branch and the administrative state to go after our Second Amendment rights, it looks like that for the time being it’s going to nearly impossible for Biden and Democrats to pack the Supreme Court with anti-gun justices, as the Left has been petulantly demanding since the confirmation of Amy Coney Barrett.
In a worst case scenario for gun owners, the Senate will be split 50-50, with Kamala Harris casting any tie-breaking votes. The AOC’s of the party will demand that Biden ram through a rule change allowing legislation to pass with 51 votes instead of the 60 now required for cloture, but I don’t see that happening. In fact, there’s a good chance that gun control activist/astronaut/Senator Mark Kelly would actually vote against it, because he’s up for re-election in two years instead of the usual six, thanks to the fact that this year’s Senate election in Arizona was actually a special election to fill the remainder of John McCain’s term.
So, a nine-justice SCOTUS seems safe for now, and that has gun control activists absolutely freaking out over the future of some of the most restrictive gun control laws in the nation.
“There are challenges on California’s gun laws bubbling through the federal courts, which makes it possible but not likely we see a case this term,” said UCLA Law Professor Adam Winkler, who specializes in constitutional law and the Second Amendment. “But it won’t be long before the court finally takes another gun case.”
And when they do, California’s gun restrictions are endangered. National gun control groups fervently opposed Barrett’s confirmation, with Everytown for Gun Safety president John Feinblatt calling Barrett a “gun rights extremist who has no place on the Supreme Court.”
“If you want to know which laws could be struck down, just open the penal code and look at every law about guns,” said Winkler. “We’re at that level.”
Anybody else a little giddy after reading that last sentence?
Look, there are certainly going to continue to be some regulations that will be found to be constitutional, but Winkler is right that the Supreme Court could soon be striking down laws that fundamentally infringe on the right to keep and bear arms.
When asked which laws he thinks could fall first, Winkler identified the state’s high-capacity magazine ban and individual cities’ restrictive conceal and carry laws as the most endangered. Winkler said that in other states, roughly 3-5% of citizens obtain conceal and carry permits. He then extrapolated these figures to Los Angeles County, which has a population of 10 million.
“If the court rules that cities like Los Angeles and San Francisco have to permit any law-abiding person to carry guns on the streets, that would be a huge change in California,” he said. “Fewer than 500 people have conceal and carry permits in Los Angeles County right now, and if we use the rates of conceal and carry permits in other states and apply it to California, we could be looking at 300,000 to 500,000 people in Los Angeles County alone carrying guns.”
We clearly have the right to bear arms, just as we have the right to keep them. The fact that fewer than 500 people can lawfully carry a firearm in a county of ten million people should make every supporter of civil rights furious, not just Second Amendment supporters. If the average citizen can’t access that right, then it’s not being regulated; it’s being infringed.
“Restrictions on military-style assault weapons will come before long, and I imagine the court will strike those down,” Winkler predicted. “Other laws that could go are the 10-day waiting period and red flag laws. If you’re looking only at history and tradition, there’s no history of these laws in the 18th Century. Even though many of these laws are bipartisan and thought to be useful tool, there’s no history and tradition behind them. If Barrett and Kavanaugh are serious, these laws likely fall, but I think background checks would survive.”
Imagine if over the next few years the Supreme Court strikes down “may issue” concealed carry, bans on so-called assault weapons and high capacity magazines, red-flag laws, bans on online ammo and gun part purchases, waiting periods, and gun rationing laws. That’s a very real possibility, and I think Winkler’s right that a carry case will likely be the next issue to come before the Supreme Court.
The case of Young vs. Hawaii, which deals with the right to openly carry a firearm, is currently before an en banc panel of the 9th Circuit Court of Appeals, and oral arguments in the case took place back on September 24th. It may still be several months before the panel releases its decision, but once it’s out, the case will almost certainly be appealed to the Supreme Court, and I think there’ll be a great deal of interest among at least five justices to take the case.
In the original 9th Circuit decision, Judge Diarmuid O’Scannlain noted that the appellate court had already ruled in a previous case that there’s no right to carry a concealed firearm to be found within the Second Amendment. O’Scannlain argued that the text of the amendment is pretty clear, and that if the right to concealed carry doesn’t exist, then the right to openly carry must be found in the text.
Though the Young case deals specifically with the right to openly carry a firearm for self-defense, the Court could easily include the right to concealed carry in its decision by addressing the errors in the 9th Circuit’s argument in that earlier carry case, known as Peruta v. San Diego. This could be to the right to bear arms what the Heller decision is to the right to keep arms, and gun control groups can’t do anything to stop it. Not only that, while the Young case is arguably the most likely to get to SCOTUS first, there’s a long line of challenges to gun control laws behind it.
The Court won’t accept every case, but I feel very good about the chances that justices will agree to hear more of them, unlike what we’ve seen over the past ten years. Thanks to Donald Trump and his three Supreme Court appointees, we now legitimately have the opportunity of securing the Second Amendment for generations to come.