In a concurring opinion earlier this week (Jaime Caetano v. Massachusetts), Justices Alito and Thomas telegraphed a veiled warning to the public: the four reliable liberals on the court are ready to overturn Heller and vitiate the unalienable right to self-defense. Allowing Obama to confirm Judge Merrick Garland to the Court will clearly result in a majority opinion against the Second Amendment at the first opportunity to overturn or severely gut the 2008 landmark decision.
As I’ve noted before, we didn’t even need the Second Amendment to affirm the natural right to self-defense, much less the green light from the unelected branch of government to preserve it. Nonetheless, it wasn’t until 2008 in the Heller decision that the fundamental individual right to bear arms was accepted. After all, we live in a judicial oligarchy, not a representative republic, and nothing is settled until the Court says so.
However, as we’ve witnessed from the liberal legal profession, they only respect stare decisis (legal precedent) when it works in concert with their political agenda. If a court decision runs counter to their agenda, they will overturn it at the first opportunity, even if that decision merely echoes a self-evident natural right. As such, blue state governments have been chipping away at the Heller decision by banning all sorts of guns and ammo, as well as the right to carry, merely stopping short of the full ban on ownership, which was the direct subject of the Heller case.
A number of lower courts have upheld state laws explicitly violating the plain meaning of the Second Amendment. Last year, Justices Scalia and Thomas took the unprecedented step of dissenting on two occasions from the high court’s decision not to grant cert and review an appeal in these cases against state gun laws.  It is clear that the impervious liberal firewall on the court is committed to limiting Heller to a footnote and either Roberts or Kennedy are enabling them (it takes 5 votes to deny cert).
One such case did come before the court earlier this week. Jaime Caetano carried a stun gun in the state of Massachusetts to protect herself against an abusive ex-partner. And indeed, she needed that stun gun in September 2011 when her boyfriend threatened her and she held him at bay by brandishing the stun gun. When she was convicted for violating the state’s ban on stun guns, Caetano sued in court asserting that her Second Amendment right was violated. The Massachusetts Supreme Judicial Court ruled against her, absurdly noting that a stun gun “is not the type of weapon that is eligible for Second Amendment protection” because it was “not in common use at the time of [the Second Amendment’s] enactment.”
After the state’s supreme court ruled against her, she appealed her case to the U.S. Supreme Court. This should have been a no-brainer, a unanimous decision in favor of Caetano and a categorical affirmation of the right to own a stun gun. After all, a stun gun is a non-lethal option for self-defense. Yet, the court remanded the case back to the same court on narrowly defined contours of the Heller decision. Alito and Scalia called out the other justices for their duck and evade modus operandi and explained the consequences of not ruling in favor of Caetano:
A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense. See Pet. for Cert. 14.
If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.
Justice Alito is clearly observing a pattern in which the liberal justices are slowly eating away at Heller and setting up the momentum to eventually overturn it with a fifth vote.
The refusal of the liberals to use the judiciary to defend the Second Amendment from the blue states embodies their hypocrisy concerning the role of the federal courts. Our Founders never envisioned the courts to be the final word in all constitutional issues and certainly never envisioned the federal courts overturning state laws on a regular basis, especially those laws upheld by the state courts. Indeed, the 1789 Judicial Act never granted the Supreme Court full appellate jurisdiction and it wasn’t until 1914 that Congress granted the Supreme Court appellate jurisdiction over all cases heard by state supreme courts.
Yet, liberal justices have spent the past 60 years using the federal courts as a tool for social engineering, concocting new rights that never existed in the Constitution and the 14th Amendment; man-made privileges that and are often directly at odds with the Constitution. They have used these judicially-concocted rights to overturn scores of state laws over basic societal questions that were within the full control of states since our founding and since the adoption of the 14th Amendment in 1868. The Court had no problem overriding the will of 32 states and ballot referendums to redefine marriage, which had been a state institution since our founding.
Now that states are blatantly violating the most foundational of unalienable rights, the right to self-defense, suddenly these same individuals are reluctant to hit the states over the head with the mighty federal gavel.
If liberals would like to shake hands with us and abolish the power of judicial review over state laws and let the people decide both on extra-constitutional issues such as abortion and marriage and flagrant constitutional issues such as gun rights, then let’s shake on it. But if they view the federal courts as the ultimate authority to create new post-constitutional rights how can they shirk from defending incontrovertible constitutional rights?
Kudos to Justice Thomas and Alito, the only remaining constitutionalists on the court, for calling out their colleagues on this duplicity.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.