June 09, 2020
UPDATE: As this article was going to press, the Supreme Court issued orders denying certiorari to all 10 of these cases. If they won't hear these cases, it's fair to ask what chance is there they'll accept one dealing with the core purpose of the Second Amendment and put an end to the abomination of tyrannical infringements once and for all?
“The Supreme Court is looking eager to weigh in on the Second Amendment weeks after it punted on its first substantial gun rights case in nearly a decade,” CNBC reports. “Ten different guns cases were on the agenda of the justices’ private conference … where they met to decide which cases they will hear in the upcoming term.”
As of this writing the cases have been relisted again. If the court does pick one, it will share something in common with the other contenders: All either ignore or tread lightly on the core purpose behind the Second Amendment, the maintenance of a well-regulated militia deemed “necessary to the security of a free State.” You can’t have that without an armed populace whose “right … to keep and bear arms shall not be infringed.”
The “punted” case was New York State Rifle & Pistol Association, Inc., v. City of New York, “mooted” because, as explained by legal website JD Supra, the city “amended its rule to allow licensed handgun owners to transport their handguns to second homes and shooting ranges outside the five boroughs.”
The cases the high court are to pick from were summarized and detailed on SCOTUSblog, and included:
Mance v. Barr, a challenge to the federal prohibition on interstate handguns sales.
Rogers v. Grewal, a challenge to New Jersey’s requirements to prove a special need to carry a firearm outside the home.
Pena v. Horan, a challenge to California’s Unsafe Handgun Act bans.
Gould v. Lipson, a challenge to Massachusetts’ requirements to prove a “proper purpose” to carry a firearm outside the home.
Cheeseman v. Polillo, another New Jersey challenge “justifiable need/urgent necessity” handgun carry requirements.
Ciolek v. New Jersey, another New Jersey “special needs” challenge.
Worman v. Healey, a challenge to Massachusetts’ ban on magazines “capable of holding more than ten rounds of ammunition.”
Malpasso v. Pallozzi, a challenge to Maryland’s “good and substantial reason” requirement for issuing carry permits.
Culp v. Raoul, a challenge to the state of Illinois’ denial of “qualified nonresidents to apply for an Illinois concealed-carry license.”
Wilson v. Cook County, Illinois, a challenge to a ban on “commonly-owned firearms and magazines.”
These are all necessary cases. They’re all worthy of support. And they’re all tailored to achieve a specific result. That’s understandable. The infringements happened incrementally over years and trying to roll them back through the courts, even when successful, at best results in what Martin Luther King condemned as “a right delayed.”
That means a right denied for the duration of the infringement.
Case in point: Young v. Hawaii, a challenge to that state’s denial of carry permits, was held up from en banc proceedings by the Ninth Circuit Court of Appeals until SCOTUS weighed in on the New York State Rifle & Pistol Association case. At this writing, plaintiff George Young has been in appeals for over seven years with no end in sight, and the man is in his 70s.
Fighting this gun-grab and that, having appeals denied, struggling to finance a case and maintain the momentum for years against government entities with virtually unlimited resources, only to reach the end of the trail and have the Supreme Court deny cert shows the legal system for the rigged game that it is. It recalls nothing so much as the John F. Kennedy quote, “Those who make peaceful revolution impossible will make violent revolution inevitable.”
The guys who risked it all with the Declaration of Independence and went on to ratify the Bill of Rights knew a little something about that, which brings us back to “the security of a free State.” That’s why at some point the Second Amendment needs to be addressed head-on.
Of the 10 cases before the court, the Petitions for Writ of Certiorari in Mance, Pena, Gould, and Cheeseman do not mention the word “militia” at all. Rogers mentions it in passing but does not elaborate. Ciolek, Worman, and Culp simply quote the Second Amendment but go no further.
Malpasso elaborates a bit, noting “Militia service, of course, necessarily includes bearing arms outside the home,” and citing the Heller acknowledgment “that the right to bear arms was codified at least in part to ensure the viability of the militia.” That said, the case is about carrying firearms for personal self-defense.
Wilson, ultimately focused on “lawful purposes such as self-defense,” goes into the most detail, asking “ Whether the Seventh Circuit’s method of analyzing Second Amendment issues – a three-part test which asks whether (1) a regulation bans weapons that were common at the time of ratification or (2) those that have some reasonable relationship to the preservation or efficiency of a well-regulated militia and (3) whether law-abiding citizens retain adequate means of self-defense – is consistent with this Court’s holding in Heller.”
What we appear to have is a manufactured conflict between Miller, essentially requiring arms to have “a reasonable relationship to the preservation or efficiency of a well-regulated militia,” and Heller, which stressed “common use for lawful purposes like self-defense.”
This is where those of us who aren’t lawyers scratch our heads, because, precedent aside, it’s obvious that the uninfringed right of the people to keep and bear arms requires our unimpeded access to both kinds. If “common use” does not include what is commonly used by the military, the militia will be rendered obsolete, as each new technological development will be reserved for the standing army and denied to the people.
Yes, the Second Amendment is not a collective but an individual right, but yes, it also serves a collective purpose. We ignore the first part, authoritatively documented by legal scholar Edwin Vieira in his classic Thirteen Words, at our peril.
“No clause in the Constitution could by any rule of construction be conceived to give the Congress a power to disarm the people,” William Rawle wrote in 1829’s A View of the Constitution, the standard Constitutional law text at leading universities for decades. “Such a flagitious attempt could only be made under a general pretence by a state legislature. But if in any pursuit of an inordinate power either should attempt it, this amendment may be appealed to as a restraint on both.”
In short: States, subordinate to “the supreme Law of the Land,” may not undermine their duties to encourage, enable and protect an armed populace and to provide for the “well-regulated” part when individuals are called up and subject to lawful discipline. Subverting that, by any level of government, is nothing less than an act of subversion against “the security of a free State.”
It’s not out of line to hope that a Second Amendment case arguing this might find its way into a mix that is mostly concerned with kinder, gentler permits, or on slowing down the further functional emasculation of already-neutered arms. Less likely, but nonetheless necessary if we’re ever going to get serious about all this, would be for this Republic to get back to founding intent, and establishing a Bill of Rights culture where citizens assume their proper role in safeguarding freedom.
About David Codrea:
David Codrea is the winner of multiple journalist awards for investigating / defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. In addition to being a regular featured contributor for Firearms News and AmmoLand Shooting Sports News, he blogs at “The War on Guns: Notes from the Resistance,” and posts on Twitter: @dcodrea and Facebook.