The ink wasn’t even dry on the Constitution when our Founding Fathers realized that we needed a bit more. They recognized that while they, themselves, might not have an interest in restricting the rights of others–which wasn’t even necessarily true of them–future generations might not be so enlightened.
They ratified 10 amendments that sought to restrain the government from repeating the offenses the British had visited on the colonists.
One of those, of course, was the Second Amendment.
They knew that a disarmed populace was a victim-filled populace.
Unfortunately, some people really don’t understand what the Second Amendment actually means.
In fact, an op-ed at The Hill tries to suggest that the status quo is a “homicide pact.”
It looks as though there will be no end to the fallout from Supreme Court Justice Clarence Thomas’s majority opinion in New York State Rifle & Pistol Association v. Bruen holding that gun control regulations are “presumptively” unconstitutional unless they are sufficiently “analogous” to a 19th century law. The Court’s requirement of a close historical comparator has turned out to be almost impossible to satisfy, causing lower courts to invalidate or question otherwise reasonable laws prohibiting the obliteration of guns’ serial numbers and firearm possession by convicted felons or domestic abusers.
Most recently, a judge held that the absence of a “historical tradition of sufficiently analogous regulations” limited New York’s ability to restrict bringing concealed weapons onto others’ private property.
He says that last part like it’s a bad thing.
Meanwhile, mass shootings have continued at an alarming rate, occurring almost twice daily since the announcement of the Bruen decision, at homes, businesses, schools, shopping centers, parties, bars and night clubs, street corners, hospitals and a Fourth of July parade, often with legally obtained firearms, including semi-automatic rifles.
It did not have to be that way. In 2008, the Supreme Court held that the Second Amendment protects an “individual right” to possess firearms. Two years later, the Court made it clear that the right to “keep and bear arms for the purpose of self-defense” is applicable to the states as well as the federal government.
Those decisions still left the scope of the Second Amendment right to be determined. In other circumstances, even fundamental constitutional rights may be subject to valid limitations when the government can currently demonstrate a sufficiently “compelling interest” to survive “strict scrutiny.”
Except strict scrutiny wasn’t even used in many of the cases we saw. Instead, lower courts decided that intermediate scrutiny–a much lower standard–was applicable in Second Amendment cases.
If strict scrutiny was the default position to decide all constitutional rights, then why was there so much vocal opposition to the recent Iowa measure seeing to require that standard in their state constitution?
I don’t recall seeing any of that opposition being that such a standard was already in use and there was no need to codify it.
See, what the author is doing is presenting what looks like a reasonable argument, trusting that the reader is unfamiliar with how things have actually shaken out historically.
Bruen’s “text and history” standard likely wouldn’t have mattered if strict scrutiny had been held by the lower courts.
Of course, the “compelling interest” thing was a problem as well, since few think combatting crime is a compelling interest for the government. The problem is that gun control restricts rights for absolutely no reason. Generations of gun control have had little positive impact on violent crime. The ebbs and flows of homicide rates respond to factors beyond restricting guns.
The author finishes with this:
There is no logical, sensible or moral reason to confine today’s gun laws to the provisions favored by 19th century property owners, other than a dogmatic commitment to so-called originalism, no matter how much carnage follows. In 1949, Justice Robert Jackson famously cautioned, “there is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Justice Thomas has at last assembled a majority that now appears bent on turning the Second Amendment into a homicide pact.
First, Justice Thomas assembled nothing. Remember that the Supreme Court doesn’t appoint its own members. That power rests in the hands of the President of the United States and the United States Senate. The president nominates and the Senate confirms.
However, as for the meat of this paragraph, let’s remember that the greatest surge in homicides came not after something like the assault weapon ban sunset in 2004, but after the passage of the Gun Control Act of 1968.
In that immediate aftermath, the murder rate soared and didn’t really go down for decades to come.
So you’ll excuse me if I don’t trip over myself handing my rights over to a Congress that’s shown no respect for any other right historically, just because some writer over at The Hill thinks we’re entering into some kind of “homicide pact” because his side can’t win anymore.
The truth is that the push toward unbridled gun control, a push being supported by the courts meant to protect our rights, was the homicide pact.
With Bruen, the Supreme Court broke that pact forever.