SCOTUS vs. The Second Amendment, Part 1 (Potential Cases)

A number of high profile Second Amendment cases are working their way towards the United States Supreme Court right now, plus one 2A related case already under consideration. The outcomes of these cases are likely to be as impactful to our Second Amendment protected rights as Heller, if not more. While you would think this would be an ideal time for them to be heard, our Supreme Court is being threatened with virtual extinction if they rule against what the left extremists demand. 

The following is a quick overview of three of these cases and why I believe this is the most dangerous time for these cases to be coming before the Supreme Court. The results may not only determine the future of the Second and Fourth Amendments but also if the government is effectively reduced from three branches to two. 

1. Young v. State of Hawaii

This case was recently decided by an en banc panel of U.S. Court of Appeals for the 9th Circuit. The case is a challenge to Hawaii’s highly restrictive open carry policy which requires the applicant to show “the urgency or the need” to carry unconcealed firearms, that they have “good moral character,” and that they be “engaged in the protection of life and property.” As a result, only private detectives and security guards are ever eligible. The equally restrictive conceal carry policy, which was not part of this case, effectively results in a complete prohibition of carrying a firearm in public for personal protection. 

Incredibly, the 9th Circuit ruled against Young, stating that Second Amendment protected rights end at your doorstep and DO NOT extend into public. Rather than relying on a plain text reading of the Second Amendment and history of Fourteenth Amendment, they cherry picked history from 17th century English law and 19th century Hawaiian regulations to determine people have the right to “keep” arms within the own homes, but NOT TO “bear” arms anywhere outside. This is the first Circuit Court to ever make such a dramatically anti-Second Amendment ruling. 

To say this is a bad ruling is putting it mildly. Even in District of Columbia v. Heller, which held the Second Amendment protects the right to keep a firearm in the home for self-defense, noted the validity of “longstanding prohibitions” such as carrying a firearm in sensitive places like schools and government buildings. Yet it was these two words the 9thCircuit used to help rationalize any place outside of the home could be prohibited. 

This ruling now covers all the states in the 9th Circuit – Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. It is certain that anti-conceal and open carry government officials will immediately seize upon this decision to further restrict or eliminate carrying firearms in public. 

While this is a prime example of the Circuit Courts rabid misinterpretation of constitutional law, legal precedent and an excellent case to be argued before SCOTUS, that has yet been done. SCOTUS did consider another similar case dealing with highly restrictive and subjective carry policy – New York State Rifle & Pistol Association vs. Corlett – in conference on Friday and may announce whether they will grant a writ of certiorari as soon as today.

2. Gun Owners of America v. Garland

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit ruled last week the ATF could not administratively change the law regarding bump stocks and that bump stocks themselves were not considered machine guns. 

In the aftermath of the Las Vegas shooting, the ATF reclassified bump stocks as machine guns under 26 U.S.C. § 5845(b) despite having no ability to fire on their own. An estimated 500,000 individuals and businesses who lawfully purchased bump stocks were forced to dispose of them without compensation or face criminal charges for illegal possession of a machine gun. 

The Court’s ruling confirmed the ATF was incorrect in determining a bump stock accessory was a machine gun. It also ruled the ATF could not change the law by itself, that it must be done by Congress. 

The ATF/DOJ will most certainly appeal this ruling to an en banc panel in the 6th Circuit, as well as attempt to make other modifications to firearm definitions to circumvent this ruling. Yet the importance of this case cannot be understated. With the ATF’s recent moves against pistol braces and the 80% market, the possibility of the ATF/DOJ again administratively banning and restricting firearms and non-firearm parts in a similar overreach is real. 

3. Caniglia v. Storm 

This case was recently heard by SCOTUS and while not strictly a Second Amendment case, it has a direct impact on Second Amendment protected rights. The case questions whether the “community caretaking” exception to the Fourth Amendment warrant requirements extends to the home. 

The officers in this situation used “community caretaking”, an exception created by the court to generally deal warrantless searches of abandoned or impounded vehicles, to enter a private home and seize firearms and ammunition. This was after the officers promised the owner who went to the hospital for an evaluation (and was immediately discharged) they would not confiscate them and falsely telling his wife he had in fact consented to the confiscation. 

While there are warrantless exceptions to entering a home without a warrant, these “exigent circumstances” cover emergency situations such as to prevent an imminent or in progress assault or to render emergency aid for someone inside, such as a heart attack victim. No “exigent circumstances” were claimed here. 

Had this case involved the seizure of drugs, stolen property or anything other than firearms, likely nobody would have given a rat’s *ss about it. Yet by attempting to use a “community caretaking” exception to remove firearms from a private residence against the owner’s will, it directly imperils Second Amendment rights. 

Consider what could be rationalized by government officials as “community safety” to enter your home and remove your firearms without a warrant. An argument with a neighbor who knows you have firearms? Someone seeing you come back from the range with a large “cache of weapons”? An argument inside the house where firearms are “registered”, overheard by someone passing in the street? Someone known to own firearms being upset after being terminated from a job?

Side note: In this case as well as another case recently settled by SCOTUS (Torres v Madrid), the government argued the officers themselves were not liable due to “qualified immunity”. This is the same qualified immunity the same government is demanding be stripped from law enforcement officers in the name of police reform at the local, state and federal level. 

The Court’s ruling on these cases could significantly impact your right to be free from unreasonable search and seizures in your home as well as your right to keep and bear arms outside the home.

Continued in Part 2 (And Then There Were Two)

Bob

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