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Good article from NRA's (Charles C. W. Cooke)
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Posted by: TEEBONE ®

02/09/2018, 15:46:03

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Second Amendment gets Second-Class Treatment

Among those who
remain frustrated by Americans’ continuing distaste for harsh,
European-style gun control, a favorite point of complaint is that the
Second Amendment is more vigorously and consistently enforced than are
all the others, and that this supposed disparity isn’t fair. Writing
recently in The Atlantic, David Frum lamented that the right to keep and
bear arms was on a jurisprudential par with “free speech and peaceful
assembly,” and then proposed that “in actual practice” it is “often a
more fundamental right.” This claim is routinely echoed across the
internet, with terms such as “extreme,” “absolute,” and “uncompromising”
being thrown around with particular abandon. A popular meme on social
media captures the idea well. “I wish,” it reads, “that abortion were
regulated in the same way as are firearms”—the implication, naturally,
being that firearms are not regulated at all. Where, critics ask, are
the limits?

This talking point is an
extraordinarily irritating one, for, far from being set apart for
special treatment, the Second Amendment is in fact the least enforced
provision within the entire Bill of Rights—and, arguably, within the
entire Constitution. During the last decade, Congress has generally
declined to impose new federal gun regulations, but, at the same time,
it has so far accomplished little to provide relief for the millions of
Americans who live in states with vehemently anti-gun legislatures.
Likewise, the Supreme Court seems to have run out of steam immediately
after the 2010 McDonald v. Chicago decision. 2008’s D.C. vs. Heller
was a crucial—and legally correct—step toward the restoration of the
Second Amendment; McDonald, which applied Heller to the states, was more
important still. And yet, because in practice the two rulings nixed
only the most extreme provisions within the panoply of illegal gun
control rules, they left a number of important questions unanswered.
Almost a decade later, there remains a veritable raft of related law in
dire need of fleshing out. Alas, the court has steadfastly refused to do
that work, permitting the lower courts to run riot.

Frustrated by his colleagues’ peculiar reluctance to engage with cases involving guns,
Justice Clarence Thomas has taken to issuing rare dissents from the
frequent denials of certiorari, and to chastising his branch for its
pernicious selectivity. “Despite the clarity with which we described the
Second Amendment’s core protection for the right of self-defense,”
Thomas has written, “lower courts, including the ones here, have failed
to protect it.” This, he proposed, is unacceptable, for “Second
Amendment rights are no less protected by our Constitution than other
rights enumerated in that document.” Indeed.

yet in practice, they are less protected. Aware that the courts are
slow at best and indifferent at worst, and cognizant, too, of the
perennial gridlock in the Senate, a slew of American jurisdictions have
gotten away with the most potent of infractions of the right to keep and
bear arms. Washington, d.c.—which should be a model of constitutional
fealty, but is in reality a rebel against the law—has routinely felt
comfortable denying concealed-carry permits to all but the most
politically well connected, though that was recently remedied by another
court decision. New York City, the most populous metropolis in America,
has made the process of acquiring a firearm almost impossible to
navigate. Maryland has banned the most commonly owned rifle in the
United States. New Jersey—never to be outdone—has become the poster
child for suppression of every imaginable kind. Were the Second
Amendment to be given the special treatment that the gun controllers
believe it is—were, in other words, the Second Amendment to be treated
as is, say, the First—these regulations would long ago have
washed away. In fact, were the Second Amendment treated in the same way
as is the First Amendment, even the generally non-controversial
regulations on the acquisition, transfer and bearing of firearms would
be obviated. As it is, the outliers remain, and their critics see little
hope of relief.

For many,
things are bound to get worse, not better. Chris Christie is nobody’s
idea of a champion of gun rights, but, under his governorship that just
ended, New Jersey has more or less held the line over the past eight
years. The new governor, Phil Murphy, intends to change that
dramatically. Per Murphy’s campaign website, the new administration will
“start by signing every piece of gun violence prevention legislation
that Governor Christie has vetoed”; “[require] all gun retailers to
carry at least one smart gun once they are commercially available”;
raise taxes on gun purchases; and add even more obstacles to the
acquisition of firearms in a state in which it is already extremely
difficult to legally obtain a gun. Can New Jersey descend even lower?
Sure it can.

So, too, can
California. Absurd as it may sound in a vacuum, gun owners in California
might soon look back on Jerry Brown’s tenure as a relative golden age.
If, as seems likely, Brown is replaced by a more zealous figure—Gavin
Newsom springs to mind—the bills that Brown vetoed will soon make their
way into the statute book. And when they do, California, which is
already an outlier, will move even further away from the demands of the
Bill of Rights.

These changes,
it must be pointed out, will not represent a victory for “federalism”
or for “states’ rights,” and are not “just democracy.” Nor are their
opponents “hypocrites” for objecting. Federalism and democracy are the
backbones of the American system, and should be respected considerably
more than they are at present. But where there is a conflict between
federalism and democracy and the Bill of Rights, the Bill of Rights must
invariably prevail.

Outside of the debate over
gun control, this is an uncontroversial statement. It would be
considered preposterous for a governor or state legislator to argue
that, in the name of local control or of democracy, his state intended
to establish a church, to limit trial by jury, or to shut down critical
newspapers. So it should when he promises to undermine the Second
Amendment, either for residents under his jurisdiction, or for American
citizens who on occasion may enter it. That such infringements are not,
in fact, met with the same outrage—and, indeed, that Congress and the
courts let such transgressions fly—demonstrates nicely how fallacious
the claim is that the Second Amendment is the most potent right of all,
and how necessary engagement has become. Somehow, when the topic is
guns, something always changes.

it is that Americans who live near state lines are often unable to carry
for fear of crossing into a neighboring territory and losing their
rights completely. Thus it is that the most commonly purchased firearm
in America—a weapon that clearly falls under the “in common use”
standard laid out in Heller—is prohibited in a handful of
states. Thus it is that an unresolved circuit split on the question of
concealed carry has made the issuance of permits a crapshoot.
Effectively, one’s access to the right to keep and bear arms depends
largely on where one lives. If you’re in Arizona, you’re set. If you’re
in California, you’re in trouble. There are, in practice, parts of
America that are Constitution-free zones. This, once again, is by no
means the product of a thriving federalist system, but of certain states
bucking the core rules which ostensibly govern all people and
jurisdictions, and getting away with it.

the Supreme Court would intervene regularly, as it does on behalf of
other parts of the constitutional order. Most pressing on that docket
are the questions surrounding the legality of “may-issue” concealed
carry, and of the 4th Circuit’s upholding of Maryland’s AR-15 ban. But
if it doesn’t step up to the plate—if, in other words, Thomas is to
remain frustrated for the foreseeable future—Congress can help to fill
the void.

the Second Amendment is to be set back upon the pedestal that hosts the
remainder of the Bill of Rights, it will require a national engagement
has, thus far, been at best spotty and at worst missing completely.

most obvious next step is for Congress to require that each state
respect carry permits that have been issued by another. Such a law would
bring to an end the present arrangement—in which Americans are
routinely denied a right guaranteed by the federal Constitution simply
because they move between localities—and thereby ensure that the Second
Amendment is treated similarly to the First, Third, Fourth, Fifth and so
forth. It would be unheard of for an American to cross over into a
neighboring state and have no way of accessing his right to speak, to
petition or to engage in journalism. Indeed, in such an instance, he
would reasonably be expected to say, “Civis Americanus sum,” and to
bring merry hell down upon the authorities. If Congress engages, as it
must, it will provide Americans with that power.

purpose of any such measure—one of which has already passed the House
and is now under consideration in the Senate—would be to protect
law-abiding citizens whose only “crime” has been to move to another
physical location within their country of citizenship, and to assume
they’d be protected there by the Constitution. Recently, both Shaneen
Allen and Melroy Cort made headlines for doing precisely this, and for
being threatened with life-destroying punishments as a result.
Ultimately, both were released—Allen
by a pardon, and Cort, in
part, by a jury acquittal—but only after they had suffered considerable
financial, personal and professional harm. Ensuring that nobody else
meets the same fate should be a top legislative priority.

we are seeing predictable pushback from within the Democrat party. When
the House reciprocity bill passed easily in December, U.S. Rep. Nancy
Pelosi, d-Calif., took to the rooftops to lie about its effects and to
complain that it was “extreme.” Would that she had read her history—in
particular, the history surrounding the constitutional provision that
enables Congress to intervene. As is abundantly clear from the debates
surrounding the passage of the 14th Amendment, both its author, John
Bingham, and its principal sponsor, Jacob Howard, regarded gun ownership
as a fundamental civil right that needed national protection against
inevitable local subversion. Attempts to limit fundamental rights by
location, Bingham wrote, would turn the Constitution’s “sublime and
beautiful scripture” into a “horrid
charter of wrong.” “The
privileges and immunities of citizens of a State,” he added, “are
chiefly defined in the first eight amendments to the constitution of the
United States.” The right to keep and bear arms sits happily among
those eight. It now falls to the Senate to bring that right into line
with the remaining seven.

That, ultimately, should be our aim. As Adam Liptak has observed in The New York Times,
for a brief period in the middle of the 20th century, the Second
Amendment was ignored and subverted by an establishment that preferred
to read its own “political preferences” into its meaning, rather than to
engage in “a serious consideration of the amendment’s text, history and
place in the structure of the Constitution.” Or, as Sanford Levinson
has more bluntly put it, for a number of years “the standard liberal
position [was] that the Second Amendment is basically just read out of
the Constitution.”

Now, happily, it is
not—at least, not usually. Nevertheless, some of those bad habits have
remained, and they are hobbling the completion of a long-overdue
restoration. If the Second Amendment is to be set back upon the pedestal
that hosts the remainder of the Bill of Rights, it will require a
national engagement that has, thus far, been at best spotty and at worst
missing completely. Here’s to the fray.

Charles C.W. Cooke is the editor of National Review Online.


Democrats wouldn't buy a clue if it was government subsidized.

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