State of the Second Amendment: Recent Court Decisions Favor Freedom

The state of the Second Amendment is strong. Historians may look back on last year’s Heller v. Washington, DC as an inflection point in favor of gun rights. The 5-4 decision affirmed that the Constitution protects the right of the individual to keep and bear arms, a result with which Americans overwhelmingly agreed and increased their positive opinion of the Supreme Court. In spite of a Democratic administration with an extensive track record of strict adherence to gun control dogma occupying the White House, a solid majority of voters has surfaced who believes the right to bear arms shall not be infringed.

The momentum of Heller has yet to slow down in the judiciary. On February 18, The United States Court of Appeals for the Tenth Circuit maintained that citizens have a right to keep arms when commuting to and from work. Ramsy Winch, Inc v. Henry ended a five year battle, ruling that the plaintiffs’ rights as property owners were not violated when the individual employees exercised their rights to safely keep firearms in their parked automobiles. Importantly, the court added that such practices are not preempted by the federal Occupational Safety and Health Act. In other words, it would be unconstitutional for Congress to apply regulations intended for worker safety to the Second Amendment.

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McDonald v. Chicago, a major case involving Second Amendment rights, is to be argued before the Supreme Court this fall. While Heller declared that the federal government must recognize the individual’s right to keep and bear arms, it failed to “incorporate” the Second Amendment to the states. Incorporation is a legal doctrine stemming from the Equal Protection Clause of the 14th Amendment, which is used to extend constitutional protections, like freedom of speech, to the states, thus prohibiting states from infringing upon rights that are protected by the federal government. The court has been systematically incorporating the Bill of Rights to the states using the Due Process Clause of the 14th Amendment, but has yet to make such a decision for the Second Amendment. If the plaintiffs in McDonald are successful, the Second Amendment will finally be incorporated as well. The case will thus have the potential to radically change constitutional jurisprudence, making the case one of the most important ones in recent history. Opponents have argued that local governments and states should have the right to make laws regulating the sale and possession of firearms as they see fit. Supporters hold that the right to bear arms is a fundamental right of the individual, which is protected from the lawmaking ability of governments at any level. If the previous decision is any guide, the four judges of the conservative wing will hold that the Second Amendment should be incorporated while the four liberal judges will dissent. That leaves Justice Anthony Kennedy, Jr. with the deciding vote, which he formerly cast in favor of freedom.

Recently, protecting the right of Americans to keep and bear arms has proven to be a nonpartisan issue. The Coburn amendment to a bill placing new restrictions on credit card companies passed both chambers, ensuring that law-abiding citizens can arm themselves when traveling in national parks and other federally operated public lands. Americans’ dedication to protecting the right to self defense was evident when 105 House Democrats joined a majority of Republicans in supporting the measure. An initiative to introduce reciprocity among states which issue Right-to-Carry permits gained momentum in the Senate. The amendment failed to pass, garnering 58 of the 60 votes needed; however, a number of Democrats supported the proposal, which would allow law-abiding, permit carriers from one state to be recognized by other states which issue similar permits. Passage of such a law would strengthen the fact that Second Amendment rights do not end at state lines.

Unfortunately, gun rights advocates in California have not been as successful. Currently, two anti-gun bills have passed the Assembly and await the consideration of Governor Schwarzenegger. One bill promises to limit access to ammunition by subjecting purchasers and dealers to fingerprinting and record keeping requirements, as well as prohibit the sale of ammunition online, further disrupting an already limited market. Passage of the bill proceeded, despite the fact that Congress ended similar practices when it was found they had no effect on solving crimes. The second bill would prohibit the sale of firearms in or around Cow Palace in San Francisco, a popular venue for gun shows. Academic studies have shown that gun shows are not correlated to crime increases, and may in fact diminish local rates of violent crime. Hopefully, Gov. Schwarzenegger will hold the freedom line, but in the future, we should be more vigilant of our elected representatives’ attempts to separate us from our right to bear arms.

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While we who understand that the bedrock of America’s freedom is embodied in the Second Amendment have earned the right to celebrate our recent political victories, the battle continues. The age of Obama has replaced many friends of the Second Amendment with sworn enemies. While John Bolton was the ambassador to the United Nations, his top priority was defending American’s right to keep and bear arms against an international community dedicated to the eradication of such rights. UN representatives, both nations and NGOs alike, have been drafting arms control treaties which would affect American gun owners if ratified by the anti-gun Senate and president. It is unlikely that Dr. Susan Rice will advocate on behalf of the Second Amendment as vehemently as Bolton. In addition, the placement of Attorney General Eric Holder in charge of the agency of Alcohol, Tobacco, Firearms, and Explosives (ATFE), and Drug Czar Gil Kerlikowske’s possible blaming of drug cartel related crime near the Mexican border on American gun laws, may be seen as a signal that the administration might quickly and unexpectedly impose more anti-gun policies.

As Americans buy up ammunition and firearms in anticipation of a changing political climate, the future of gun rights remains uncertain. Obama Supreme Court appointee Sonya Sotomayor has a rich history of handing down anti-gun opinions. Earlier this year, she sided with the majority in Maloney v. Cuomo which rejected the Due Process incorporation of the Second Amendment to the states. It remains to be seen whether she will repeat this assertion in the McDonald case, despite the apparent contradiction between her self-proclaimed adherence to precedent during her confirmation hearings and the recent Heller decision. Most likely, she will be a strong voice against the freedom to keep and bear arms for years to come. Regardless, the vigilance of those who wish to preserve American freedom ought to remain a potent check on the power struggles of our public servants. The Second Amendment, after all, guarantees that our government’s purpose is to serve us, not the other way around.

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