There are all sorts of rights the federal courts have invented. There is a right to an abortion with no restrictions on the clinics; there is a right to force states to recognize any relationship as a marriage; there is a right for Planned Parenthood to get state funding; there is a right to 20 days of early voting and ballot harvesting.
Yet, when it comes to the unambiguous, natural right of self-defense, enshrined into the Second Amendment, the courts tell the states that they are free to regulate the unalienable right all they want.
The latest example is the notorious Ninth Circuit Court of Appeals upholding California’s law requiring a 10-day waiting period to take possession of a gun after a purchase. Writing for a three judge panel, which overturned a district judge’s opinion in favor of the Second Amendment, Judge Mary Schroeder wrote that “[A] 10-day cooling-off period would serve to discourage such conduct and would impose no serious burden on the core Second Amendment right of defense of the home.”
Let’s be clear here: There is only one enumerated right in the Bill of Rights for which the unequivocal language of “shall not be infringed” is used. That language is not used for abortion or forced recognition of alternative lifestyles as marriage against the will of the states. (In fact, it doesn’t talk about those things at all in the Constitution. Yet, the courts are saying states can’t even implement common sense health regulations on abortion clinics.) The one right that is mentioned explicitly in unmistakable language, on the other hand, seems to be open to all sorts of political arguments by the courts.
Putting aside the fact that criminals don’t submit themselves to background checks and have plenty of avenues to purchase a gun immediately, these are not constitutional arguments. Placing a 10-day waiting period is a substantial burden, especially for first-time purchasers who often make the decision out of an imminent sense of fear or need for self-defense.
Such a restriction is manifestly unconstitutional for those who are approved quickly by the federal background check system, especially in the eyes of judges who think everything not in adherence to the DNC platform is unconstitutional.
The same courts that nullify every legitimate state power — from marriage and abortion regulation to election maps and even adhering to natural law — are suddenly deferential to state laws that are incontrovertibly against the plain language of the Constitution.
Whereas they apply strict scrutiny to any regulation of a clear state power against the ACLU’s assertion of a fundamental right, they only applied intermediate scrutiny to this gun regulation against a natural right that pre-dated our Constitution.
There are a couple of other observations in order here:
1. The lower courts are killing the Second Amendment. SCOTUS remains silent.
This gun ruling is part of a growing trend where lower courts are severely limiting the scope of the Heller ruling (not that we need the court to affirm a natural right). In Heller, the Supreme Court made it clear that governmental interest cannot be factored in to mitigate an individual right to own or bear firearms because the Second Amendment “is the very product of an interest-balancing by the people,” and “[t]he very enumeration of the right takes out of the hands of government … the power to decide on a case-by-case basis whether the right is really worth insisting upon.”
Yet every single circuit that has heard cases on gun restrictions — the Second, Third, Fourth, Ninth, and 10th Circuit Courts — has ruled there is no right to self-defense outside the home in contravention of the plain language of the Heller decision and the undeniable text of the Second Amendment. They have also upheld state “assault weapons” and high-capacity magazine bans in the Second, Fourth, and Seventh, and Ninth Circuits.
Thus far, we can’t even affirm a foundational right to self-defense with a single circuit, and the Supreme Court has therefore declined to grant cert (accept an appeal from the lower courts) to gun rights activists in an effort to overturn these lower court decisions on appeal.
Even when SCOTUS has broached the topic of guns since the Heller ruling, all but the few conservatives have clearly gone along with limiting Heller. The conservatives on the court have called them out for surreptitiously allowing the Second Amendment to be killed in the lower courts.
2. The courts are a one-way dead-end for conservatives
Ever since the federal judiciary has erroneously been given the distinction of the sole and final arbiter of constitutional interpretation, conservatives have been on the losing side of judicial supremacy well over 90 percent of the time. Heller was one of the few cases where we benefited from judicial supremacism — with the court throwing out some blue state gun restrictions.
But notice the difference between liberal victories in the courts (even when built upon unconstitutional jurisprudence) and the few conservative victories (even when the jurisprudence is rooted in the plain text of the Constitution).
Immediately after Obergefell where the courts redefined the building block of all civilization, every red state pretty much immediately threw in the towel. Conversely, when conservatives won in Heller, the blue states immediately got to work to chip away at the scope of the victory by continuing to enforce anti-carry laws, assault weapons bans, and sundry restrictions. The dividends of liberals’ “Never surrender” mentality have paid off as the lower courts are upholding their shenanigans.
Thus once again, I must say, the federal judiciary is a dead-end for us to enforce true constitutionalism in blue states and will only serve as an anti-constitutional juggernaut for our policies in red states. Which is why we need judicial reform — badly.
Yesterday was the 225th anniversary of the ratification of the Bill of Rights. Years after the courts have been crowned king over our Constitution, everything under the sun has been retroactively enshrined into those critical amendments, except for the principles that were actually adopted in plain English.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.