This article was published by The McAlvany Intelligence Advisor on Wednesday, June 28, 2017:
In one of the more inane and nonsensical effusions of rejoicing over the Supreme Court’s decision on Monday to let stand a lower court’s anti-gun decision, California’s Attorney General Xavier Becerra sullied his credibility and those of similar view with this:
[It’s] welcome news for California and gun safety everywhere. It leaves in place an important and common-sense firearm regulation, one that promotes public safety, respects 2nd Amendment rights and values the judgments of sheriffs and police chiefs throughout the state on what works best for their communities.
This packs more misstatements, half-truths and just plain damnable lies into one paragraph than has been seen in recent years. By disarming its citizens, California has virtually guaranteed an increase in violent crime, especially gun violence. The onerous restrictions on the Second Amendment applied to law-abiding citizens fail to respect it but instead do serious if not fatal damage to it. And as far as judgments by local sheriffs and police officers as to the applicability of the Second Amendment to its citizens, one needs only to bring to mind the history of tyrants operating without restraint.
It’s going to be a victory short-lived. Time, age, and circumstance are all working in favor of the Second Amendment’s full and well-deserved blossoming. With Gorsuch beating the first path through the snow onto the bench, there are three other members of the majority who, by the passage of time or inclination, could be replaced during the Trump administration: Anthony Kennedy (age 81), Ruth Bader Ginsburg (age 84), and Stephen Breyer (age 79). Indeed rumors are circulating that Kennedy might just opt off the bench at the end of the present term.
In addition, nearly one out of ten Americans already have concealed carry permits across the land, and momentum is growing to pass the national reciprocity bill which would obviate and neuter California’s efforts to suppress its citizens with egregious infringements of their rights. Further, it’s likely that, just as in Connecticut (where onerous anti-gun legislation is being largely ignored by vast swaths of gun owners), Californians are likely to consider the 9th Circuit’s ruling – and by extension, its tacit if temporary approval by the Supremes – as irrelevant when it comes to providing personal protection, and continue to carry concealed anyway. After all, if they are carrying concealed, who will know?
It takes four justices to consider a lower court case, and in the case of Peruta v. San Diego, only two could be found among the nine: Justices Clarence Thomas and Neil Gorsuch. But Thomas’s dissent, concurred in by Gorsuch, is worthy of a full reading and close attention by Constitutionalists and Second Amendment advocates. The full text of his/their dissent is under Sources below – it runs eight pages – so these comments reflect only a little of the Justice Thomas’ sound understanding:
At issue in this case is whether that guarantee protects the right to carry firearms in public for self-defense. Neither party disputes that the issue is one of national importance, or that the courts of appeals have already weighed in extensively. I would therefore [have granted] the petition for a writ of certiorari.
California generally prohibits the average citizen from carrying a firearm in public spaces, either openly or concealed. With a few limited exceptions, the State prohibits open carry altogether. It proscribes concealed carry unless a resident obtains a license by showing “good cause,”among other criteria….
In the county where petitioners reside [San Diego], the sheriff has interpreted “good cause” to require an applicant to show that he has a particularized need, substantiated by documentary evidence, to carry a firearm for self-defense. The sheriff’s policy specifies that “concern for one’s personal safety” does not “alone” satisfy this requirement….
Instead, an applicant must show “a set of circumstances that distinguish the applicant from the mainstream and cause him to be placed in harm’s way. [A] typical citizen fearing for his personal safety—by definition—cannot distinguish himself from the mainstream.” As a result, ordinary, “law-abiding, responsible citizens,” [as quoted from the Supreme Court’s decision in District of Columbia v. Heller], may not obtain a permit for concealed carry of a firearm in public spaces.
Consequently, with California’s injunction against open carry, and San Diego’s injunction against concealed carry, citizens are thus, wrote Thomas, “unable to bear firearms in public in any manner.” He added: “I find it extremely improbable that the Framers [of the Constitution] understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.”
Thomas came close to putting his finger on why the present majority doesn’t want to take cases like Peruta: for fear of extending the Second Amendment to its rightful place not only as the amendment in second place behind the First, but giving Second Amendment supporters a victory that anti-gun members of the court want to avoid. Thomas noted that the 9th Circuit focused only on the specific term “good cause” and left out consideration of the much broader, much more important, and to the majority, much more dangerous proposition: “The approach taken by the [9th Circuit Court] is indefensible, and the [present] petition raises important questions that this Court should address … had the Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled [emphasis added] to reach the opposite result.”
Not only are time, age and circumstance working in favor of the Second Amendment’s full flowering but strategy as well. As the NRA’s Chris Cox noted: “We look forward to a future Court’s affirming that the right to keep and bear arms is as much a part of our Constitution as the other enumerated rights that it protects. We will not stop fighting until a future Court affirms this fundamental right.”
Following Monday’s disappointment, one of Peruta’s lawyers said:
Our plan is to get [another] case to the Supreme Court as soon as possible. Peruta was one of the cases that we saw as a vehicle for that. But we didn’t put all our eggs in this basket.”
Supporters of the Second Amendment – and for that matter, the entire Constitution – are at present on the right side of history. Victory statements by the likes of California’s AG are going to fade into history as the war over the Second Amendment continues to favor the diligent, the informed and the active.
The Washington Examiner: Supreme Court refuses to hear high-stakes Second Amendment handgun case
The New York Times: Supreme Court Turns Down Case on Carrying Guns in Public
The Washington Times: Supreme Court declines to hear challenge to concealed carry restrictions