What happens when courts create faux rights, such as the “right” for foreign nationals to immigrate, the “right” for states to demand more immigrants from the federal government, the “right” for illegal aliens to obtain driver’s licenses, or the “right” to 15 days of early voting?
Inevitably, the courts overlook the most foundational of rights that are written in plain English — the ones that serve as the foundation of our republic. Last week, it was a state court in Washington violating the property and conscience rights of those who don’t service homosexual ceremonies. Today, it is the courts infringing upon the one right that pre-dated the Bill of Rights and is written in the most unambiguous and absolute terms: “shall not be infringed.”
As is always the case, after conservatives secured a 2-1 victory at the Fourth Circuit last year against Maryland’s “assault weapons” ban, the full en banc panel upheld the law. In a 10-4 ruling – one which was full of vengeful rhetoric over Sandy Hook and ignorance of the distinction between a machine gun and a ‘scary looking’ semi-auto — the court ruled that Maryland could ban 45 commonly held weapons as well as magazines that hold more than 10 rounds. “We have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage,” wrote a brazen Judge Robert B. King. Every Democrat appointee except for Judge William Traxler (who wrote the dissent) and one GOP appointee joined the majority opinion.
Following the Sandy Hook shooting, states like Maryland, New York and Connecticut banned a multitude of semi-automatic rifles containing cosmetic features that make them look scary. Some states also required forced registration of those firearms already owned by private citizens. Additionally, they banned magazines that hold more than 10 rounds. Yet, despite almost a decade since the Heller decision, the lower courts have been allowed to chip away at this foundational right. Thus far, the Second, Fourth, Seventh, and Ninth Circuits have all ruled that almost any common gun or magazine in use can be banned by a state if the pistol grips and picatinny rails on the rifles look scary. Additionally, the Second, Third, Fourth, Ninth, and Tenth Circuit Courts have each ruled there is no right to self-defense outside the home — in contravention of the plain language of the Heller decision.
As I’ve written before, the notion that any common weapon can be banned violates the inalienable right to self-defense, which predated the Second Amendment. It is a natural right. Yet, given that we live in a world where rights come from the Supreme Court, we should at least ensure that lower courts properly read the text of the Heller decision. Here is what Scalia wrote in the majority opinion:
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.
Thus, contrary to the Fourth Circuit’s opinion, this case has already been addressed by Heller. There is no government “interest balancing” for perceived benefits of public safety that can justify the infringement upon the right to self-defense for any commonly held weapon used for lawful purposes.
Judge William Traxler, in a rare display of intellectual honesty for a Democrat appointee, laid out the consequences of this case in plain English:
Today the majority holds that the Government can take semi automatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland, the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.
Indeed, in the case of lower courts upholding sweeping gun bans, the silence of more than three justices willing to grant cert to petitioners (it takes four) is deafening. As Justice Thomas has noted in his dissent on the denial of cert on the two previous assault weapons bans, the other justices (presumably Roberts and Kennedy included) are clearly allowing the Second Amendment to become a second-class right. And Roberts was allowing this to happen even when Scalia was on the court. Thus, don’t expect this to change after Gorsuch takes his seat on the high court.
What this decision demonstrates, once again, is that not only does stare decisis (precedent) only hold true for liberal Supreme Court rulings, but it fails to bind even the lower courts to opinions it doesn’t like. This is the same rationale the Ninth Circuit used to trash 200 years of settled case law when they created a right to immigrate.
Protecting gun rights from heavy-handed laws in blue states is practically the only benefit left for conservatives to keep the practice of judicial review. Yet, the past five years of gun cases has demonstrated that the courts will never serve as a legitimate venue for us to protect real rights. As such, why empower them to create phony rights for protected classes and dangerous rights for foreign nationals?
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.