By Dave Workman
Editor-in-Chief
History and common sense, have twice again prevailed in the Second Amendment arena this year, where the gun control lobby and their allies have suffered two significant losses in as many weeks before the U.S. Supreme Court, in two important cases, United States v. Hemani and Wolford v. Lopez.
This continues a string of losses dating back to the Supreme Court’s 2008 landmark ruling in District of Columbia v. Heller, followed in 2010 by their setback in McDonald v. City of Chicago, and in 2022 when the high court struck down the abysmal “good cause” requirement for concealed carry permits in New York State Rifle & Pistol Association v. Bruen.
That makes five losses in a row for the gun prohibition movement, which has ben unable to convince the highest court in the land that the Second Amendment protects a fundamental right of individual citizens to keep and bear arms, rather than a government-regulated privilege. And service in a militia is not a requirement, the Court has repeatedly explained.
In the latest go-round of challenges to gun control laws on Second Amendment grounds, all of the usual players have been on the losing side. Amicus briefs filed in the Wolford case, which overturned Hawaii’s “default” restriction requiring property owners to specifically allow firearms in their establishments came from:
- The Brady Center to Prevent Gun Violence and Giffords Law Center to Prevent Gun Violence, filing a joint amicus brief;
- Everytown for Gun Safety, filing its own 38-page amicus brief;
- The cities of Baltimore and New Haven, joined by the South Carolina Small Business Chamber of Commerce in a 26-page amicus brief;
- Global Action on Gun Violence, submitting its own brief, which stretched 55 pages; and
- Prosecutors Against Gun Violence, led by New York’s own Alvin Bragg, who prosecuted Donald Trump, with a 25-page amicus brief supporting Hawaii.
Arguments in all of those briefs essentially centered on public safety, as though restricting law-abiding citizens from being armed for their own protection will somehow prevent criminals and crazy people from ignoring such restrictions, a concept which, so far, hasn’t worked.
Thursday’s 6-3 ruling against the Hawaii law, also affects similar restrictive laws in four other states, according to the Los Angeles Times. Those states are California, Maryland, New Jersey and New York, all of which saw their Democrat-controlled state legislatures scrambling after the Bruen ruling four years ago in an effort to dance around the high court’s smackdown f “may issue” concealed carry laws which required applicants to demonstrate a “need” to be armed.
In his majority opinion, Associate Justice Samuel Alito wrote that Hawaii’s requirement that property owners post signs specifically allowing concealed carry on their premises “hobbles what the Second Amendment protects: the right of Americans to carry arms for self-defense as they go about their daily lives.” He said Hawaii’s rule “burdens those wishing to exercise their Second Amendment right.”
Eight days earlier, the Supreme Court ruled unanimously in the Hemani case that the government’s prosecution of a man convicted of casual marijuana use while owning a firearm “is inconsistent with the Second Amendment.”
In that decision, Justice Neil Gorsuch wrote, “(W)e do not question that sometimes an individual’s unlawful use of marijuana (or any other controlled substance) may render him a danger to others. But, again, the government disclaims the need to show anything like that in this case. Instead, it asks us to conclude that anyone who regularly uses marijuana is categorically violent and dangerous without any further showing. All based on little more than its current say-so, one at odds with its own regulatory actions. And affording the government that kind of “broad power to designate any group as dangerous and thereby disqualify its members from having a gun” would risk allowing it to ‘quickly swallow’ the Second Amendment.”
Coming down on the wrong side were:
The Brady Center to Prevent Gun Violence and Giffords Law Center to Prevent Gun Violence, once again working in tandem
A lineup of attorneys general, all Democrats, representing the District of Columbia plus California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Ohio, Oregon, Rhode Island, Vermont and Washington. Their amicus brief put them all on the losing side.
And then there was the amicus brief from the Global Action on Gun Violence (GAGV) group, which supported neither party, but which argued—as did Associate Justices Ketanji Brown Jackson and Sonia Sotomayor—that “means-end scrutiny,” which invariably comes down on the side of government in cases challenging gun regulations, should be restored. According to GAGV, “Means-end scrutiny respects both constitutional text and the government’s compelling interest in protecting the public, allowing for tailored, effective responses to gun violence. This Court should reaffirm the government’s authority to enact such common-sense measures and provide lower courts and legislatures with a workable, principled standard for evaluating Second Amendment claims.”
Means-end scrutiny was clearly rejected by the Supreme Court in the Bruen ruling, authored by Justice Clarence Thomas.
Now the Supreme Court should take up a case, or cases, which will determine whether modern semi-automatic rifles and standard-capacity magazines are protected by the Second Amendment.
Likewise, there is the nagging question about waiting periods. Is it constitutional to require a person who just purchased a firearm to wait anywhere from three to ten days (which, when you include weekends, can stretch out a few more days) before he or she can actually take possession of that firearm?
These high court reviews must happen, say many gun rights activists, while there is still a conservative majority which treats the Second Amendment as protective of a first-class right.
In all likelihood, the same lineup of opponents will be submitting briefs contesting that position.
