DISFAVORED RIGHT HAS BRIGHT FUTURE
Early 1980’s – Life of the South Plantation
My father and I were part of a group of hunters riding on the back of a Jeep in the pine woods of south Georgia. As we were taking this long, slow ride, my curiosity (or nosiness) got the best of me again. The man to my right had a thick orange jacket, a shotgun shell bag too heavy for me to pick up, and a camouflage hat that had three letters on the front; NRA. He also had two shotguns on his lap. I asked him, “Sir, my name is Jake. Why do you have two guns? Don’t you just need one to hunt quail?” He replied, “Well, Jake that might be true. But, I have a right to possess as many firearms as I want.”
While I didn’t really understand what he meant and would later learn that his response was not 100 percent accurate, my interest in freedom and protecting whatever right this man had was sparked.
The man was talking about the individual right to bear arms under the 2nd Amendment (2nd). At the time, this right was undeniable and maybe even favored throughout the South. But, time, mass shootings in “gun free zones”, and emotional attacks began to erode the 2nd.
While this basic civil right withstood years of onslaughts from powerful people and institutions, and continue to do so, it was not until the 2008 Heller decision was handed down by the Supreme Court of the United States (SCOTUS or Court) that the 2nd was held to be an individual right rather than just a collective right possessed by a militia.
Ironically, the untimely death of Justice Antonin Scalia in 2016, a staunch supporter of the entire Constitution, would begin the path of greater protections for the 2nd.
Now, for the first time in a decade, the 2nd will have another critical day before SCOTUS.
It been a long time without judicial review of gun laws. Justice Clarence Thomas brought this to our attention last year when he called the 2nd a “disfavored right.” His frustration with the Court’s refusal to hear a 2nd case prompted a lengthy dissent where he pointed out the failures of lower courts to protect the individual right to bear arms.
2019. Things have changed. SCOTUS recently agreed to hear a case called New York Rifle and Pistol Association v. New York.
The New York State Rifle & Pistol Association is challenging a New York City law that bars residents from transporting handguns beyond city limits. The petitioners point out that the city ordinance “is an extreme, unjustified and irrational restriction on Second Amendment rights.” They have reason to be optimistic as SCOTUS agrees to hear the case because of the Court’s decision in its last gun case and the current makeup of the Court.
Ten years ago, in McDonald v. City of Chicago, SCOTUS said 2nd rights apply to state and local governments; like New York City.
What is different now?
For many years, the nine have been split 4-1-4. In general, there were four liberals, one swing voter, and four conservatives. This led to routine 5-4 decisions where the swing voter (retired Justice Anthony Kennedy and before him, Justice Sandra Day O’Connor) would decide most cases.
President Trump has already had the largest impact on the Supreme Court since FDR. For the first time in decades, the Court has five solid conservatives. He may even have to nominate one or two other justices before he leaves the White House.
The shift took place when hearings on President Obama’s nominee to replace Scalia, Merrick Garland, were stalled until the 2016 presidential election. Garland had liberal views on the 2nd. So, President Trump nominated a young conservative named Neil Gorsuch, who was confirmed by the Senate. The shift was solidified for years to come with the 2018 confirmation of another young conservative justice, Brett Kavanaugh.
What does the future hold?
Applications to SCOTUS to hear appeals of cases ruled on by lower courts involving violations of the 2nd have been denied by SCOTUS for years. Beginning in 2019, expect to see a number of gun cases reach the Court now and for many years to come.
It will take time for some cities and states to take this significant shift in the Court seriously. However, eventually lawmakers in these areas of the country will start passing legislation that will not violate the 2nd.
By that time, perhaps this disfavored right will be viewed as a favored right, just like every other individual right in the Constitution.
Jason W. Swindle, Sr.