Thursday, January 24, 2019

Why This SCOTUS Case Will Be Definitive For Gun Rights In America

The question before SCOTUS is simple:
"Does the 2A apply outside the home?"
IMHO, most people do not understand why the Supreme Court takes some cases and refuses to take others.  An understanding of the process leads to the conclusion that this case will be huge.

First of all, it takes four of nine justices to vote to hear a case.  In the case of gun rights cases, it is possible that the high court may have passed on some cases because one or more justices simply did not want to be forced to address the issue.  Justices are human, and I believe that SCOTUS has passed on the various carry cases in hopes that the political branches would settle the matter of carry outside the home.  Given the current division of the court, it only takes one or two such justices to cause the court to refuse to hear an appeal.  It appears that this was indeed the case with 2A based appeals, since an appeal was indeed accepted as soon as Justice Kennedy was replaced.

The conclusion is clear: At least four of the nine justices already believe that the 2A right likely, or certainly, extends outside the home.  This means that, at most, we need to hold on to these four justices (likely Neil Gorsuch, 
Brett Kavanaugh, Samuel Alito and Clarence Thomas) and pick up just one more.  This justice could be Chief Justice John Roberts (who ruled with the pro-2A majority in both Heller and McDonald) or even - though less likely - Justice Scalia's hunting and shooting buddy, Justice Elena Kagan.  Since the case will not be heard until next fall, it is possible that another conservative, pro-2A justice could join the court before then.  All in all, we are in very good shape.

Second, SCOTUS can only hear a few cases each year.  They are able to accept less than one in a thousand appeals.  Given this reality, they do tend to accept cases that appear "clean" - meaning that the decision they reach will settle a matter of controversy and give clear guidance to lower courts.  This is why a split in rulings between appellate courts greatly increases the chances that SCOTUS will accept a case involving the issue.

Currently, there is split between appeals courts as to the 2A right outside the home.  If it does extend outside the home, then government may not prohibit all forms of carry.  They MAY be able to restrict concealed carry, or open carry, but not both,  The anti-gun movement is fearful that a SCOTUS ruling will not go their way - this is why they have not appealed the cases they have lost in the courts of appeal.  Their fears are well founded.

The case SCOTUS has accepted is indeed a "clean" case.  The issue is simple: Does the 2nd Amendment right extend beyond your front door.  If it does, than NYC certainly cannot prohibit someone from transporting their firearm outside the city for lawful purposes.  If they rule that it doesn't, then the 2A will be effectively neutered.   Additionally, if the 2nd Amendment right extends outside your home, then it must be legal to carry a loaded functional firearm for self defense because this is the core right that has already been ruled to exist inside the home in both Heller and McDonald..

If the high court rules that the 2nd Amendment
must be accorded strict scrutiny, most laws in
states like CA or NY will be overturned.
In addition to likely deciding the issue of carry, there is a very good chance that the matter of "scrutiny" will be decided Right now, most 2A cases are decided using the middle standard of constitutional protection (intermediate scrutiny).  This is usually by mutual agreement because this is the lowest level of protection the 2A could possibly be accorded.  While we have won many cases using this lesser standard, what we really want is strict scrutiny.  If SCOTUS were to rule that this is the standard of review, then lower courts would be forced to apply the following test to all gun laws that come before them:

1) Does this law address a compelling need?  This is a very high bar to clear.  "Compelling need" means that government has no other choice but to act.  Clearly, some - but by no means all - gun laws could pass this first test.

2) Does this law address the compelling need in the least way that is least intrusive upon the right in question?  For instance, a a court might conclude - rightly or wrongly - that a background check law does address the "compelling need" to keep firearms out of the hands of felons and the severely mentally ill.  Does this mean that California can impose a background check, complete with 10 day wait and registration?  Absolutely not - because the check can usually be completed in minutes.  Waiting periods and registration are additional burdens that simply are not required to meet that compelling need.

Very few gun laws are going to pass this test, that's why Slate ran this headline: "The Supreme Court Is Preparing to Make Every State’s Gun Laws Look Like Texas’"  Slate is right - if we win this SCOTUS battle, that very well could be the outcome.  We can only hope, pray and support those bringing the case - because we could be playing for all the marbles.........

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