THE U.S. SUPREME COURT AND THE SECOND AMENDMENT: OUR BEST HOPE OR OUR WORST NIGHTMARE?

IMPACT OF U.S. SUPREME COURT NEW YORK CITY GUN TRANSPORT CASE DECISION ON THE SECOND AMENDMENT

PART SIX

CAN AMERICANS TRUST THEIR U.S. SUPREME COURT TO DEFEND OUR SACRED BILL OF RIGHTS?

Of the three Branches of the Federal Government in our federal system, the U.S. Supreme Court is either our best hope for preserving the U.S. Constitution and strengthening the Bill of Rights, or it’s our worst fear realized, if the High Court endangers the Constitution and weakens the Bill of Rights, abandoning the American citizenry to an awful fate.

In his concurring opinion in the New York City gun transport case (New York State Rifle & Pistol Association Inc. vs. City of New York, New York, 590 U.S ____ (2020)) Justice Kavanaugh asserts, inter alia, “I share Justice Alito’s concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”

If Justice Kavanaugh’s concurring opinion is meant to give Americans a modicum of hope, he failed miserably. He has merely raised suspicion as to his true motivations and jurisprudential leanings apropos of the Bill of Rights generally, and of the Second Amendment, particularly.

The word, ‘should,’ that Kavanaugh uses, in his concurring, doesn’t mean ‘shall,’ nor does it even mean ‘may.’

U.S. Supreme Court Justices are extremely careful in their choice of words, as every word has legal import and significance as Supreme Court cases carry a substantial impact on the lives of all Americans, even as it comes to pass how many lower Court jurists blithely, and more, unconscionably ignore U.S. Supreme Court precedent, as we see over and over again, in the way that all too many lower courts, especially federal courts, namely the United States District Courts and United States Circuit Courts of Appeal, routinely render opinions that contradict the rulings and reasoning of the seminal U.S. Supreme Court Second Amendment Heller and McDonald cases, and these lower federal courts do so with crass impunity. It is little wonder, then, that Associate Justices Clarence Thomas, Samuel Alito, and a recent member of the High Court, Neil Gorsuch, are furious over these actions of the lower Courts that constitute no less than mutiny, as serious an offense in the judicial sphere as it is in the military sphere.

If one peruses the dissenting comments of these Justices, in those cases infringing the core of the Second Amendment the High Court fails to garner four votes necessary to secure review on, one can detect, also, the conservative wing’s frustration with the liberal wing of the Court that routinely votes against hearing Second Amendment cases because the liberal wing does not recognize the right of the people to keep and bear arms as a fundamental right that accrues to the individual, but only to the militia, i.e., the Collective, and doesn’t wish to be placed in the position, a predicament for them, to overturn a lower Court Second Amendment case that fails to adhere to U.S. Supreme Court precedent.

So, then, what does the word, ‘should,’ mean? 

A short English lesson is in order. As one grammar website explains: 

“After English students learn the four types of conditionals with if-clauses and figure out when to use each one, they are told that there are other words and patterns to indicate the conditional mood, such as unless, even if, and should.” 

“Students often struggle with the conditional should (also called should-inversion) for a few reasons. First, the pattern differs from other conditional patterns, and second, the meaning is unrelated to should as a modal of advice. It is also quite formal, so students don’t come across it all that often.

But much like any grammar target in English, the conditional should can be explained and learned fairly painlessly using patterns and examples.

Conditional should and modal should have very different meanings.

Students first learn that should is a modal of advice. The meaning of modal should is a suggestion.

• You should pay attention in class.
  (I suggest that you pay attention in class.)

Conditional should means if and is used for hypothetical situations.

• Should you need anything else, please call this number.
  (If you need anything else, please call this number.)” 

Justice Kavanaugh’s use of the word, ‘should,’ in his concurring opinion, in the New York City gun transport case, rather than his use of the word, ‘shall’ or ‘will,’ or ‘must,’ or ‘may,’ is no accident. The use of the word, ‘should,’ operates, then, as a mere gesture of hope, nothing more. But, by that token, the U.S. Supreme Court should have taken up any of the two dozen cases that came up for review, in the ten years since the McDonald case decision came down. The Court didn’t.

Kavanaugh seems to be saying that “I would really like for another Second Amendment case to be heard by the Supreme Court.” But, Kavanaugh’s personal feelings are irrelevant to case analysis. What is relevant is a jurist’s decision in a case, and the reasoning the jurist uses to reach a decision–even if such reasoning amounts to simple rationalization–but Kavanaugh doesn’t provide any analysis in his concurring in the New York City case. If he were to provide analysis, we would like to see that analysis for deciding to vote with Chief Justice Roberts and the liberal wing of the Court in finding the gun transport matter moot. 

Justice Alito, in his dissenting opinion (joined by Justices Thomas and Gorsuch), explained in depth why, specifically, the New York City gun transport case is NOT moot.

One would expect that a Justice who troubles himself to write a concurring opinion at all would have realized the necessity of responding to Justice Alito’s highly detailed, precise, unequivocal, unambiguous objections to the Court majority’s decision on the mootness issue.

 Justice Alito’s criticisms of the majority’s position of the mootness issue in the New York City gun transport case cry out for a response. There is nothing in the Majority opinion to suggest Justice Alito’s objections are incorrect and there is everything in Justice Alito’s dissenting opinion that establishes why the majority decision is incorrect. Having specifically responded to the majority’s argument, the majority, in turn, should have responded to the Justice Alito’s criticism of their decision. There is everything in Justice Alito’s meticulous dissent that begs for a reply. But, the majority is silent. And, Associate Justice Kavanaugh who writes a concurring opinion is silent as well. Why bother to write a concurring opinion merely to assert that he agrees with the majority.

Having drafted a concurring, why didn’t Justice Alito tackle the issue of mootness head-on, if for no other reason than to clarify why he decided to cast his lot with the majority rather than with the dissent? That he failed to address Alito’s objections at all is itself revealing.

Justice Kavanaugh’s concurring opinion bespeaks a man who appears desperately desirous of having Americans believe he unabashedly, resolutely supports the exercise of the Second Amendment to the U.S. Constitution, even as he defers to Respondent City. But that does not justify the writing of a concurring opinion. Having done so, Justice Kavanaugh clearly demonstrates a willingness to toy with the Second Amendment, to play with it–going along with a liberal wing that detests the Second Amendment and signing up with the Chief Justice whose own jurisprudential leanings, apropos of the Second Amendment, is muddled or neutral at best, and, at worst, manifestly diverges from the jurisprudential leanings of Associate Justices Alito, Thomas, and Gorsuch who strongly adhere to the Founders’ adoration of our God-given natural, elemental, immutable, unalienable rights–rights that these Founders lovingly, and with clear conscience and conviction codified in our Bill of Rights, lest Government ever dare attempt to deny or ignore such sacred rights of the American people.

Justice Kavanaugh’s concurring opinion is not to be taken lightly. No opinion of a United States Supreme Court Justice is to be taken lightly. Nothing a United States Supreme Court Justice asserts in opinion is to be taken lightly.

All High Court opinions, be they majority opinions, or concurring opinions, or dissenting opinions are to be taken lightly. All high Court opinions carry weight and they exist in our body of law forever.

Sometimes silence is the better avenue to pursue. Chief Justice Roberts realized that. Justice Kavanaugh did not. And, his absurd and vacuous concurring will now remain, forever, as a testament to one Justice’s sheepish attempt to shore up support from, and the trust of, the American people. The American people will now remain justifiably in doubt over Associate Justice Kavanaugh’s jurisprudential leanings toward the Second Amendment of our Bill of Rights, and, in doubt, indeed, toward the entirety of our Bill of Rights and toward the very sanctity of such things as natural, fundamental, unalienable, immutable rights, bestowed in the very soul of man by the loving, omnipotent, omniscient, omnipresent Divine Creator.

Given the reluctance of the High Court to hear any Second Amendment case, even, and especially, those infringing the very core of it, the prospect of the Court actually taking up another Second Amendment case in the near future is more improbable than likely. Why is that, really?

THE U.S. SUPREME COURT REVIEWS VERY FEW CASES

First, the Court has limited time, given the number of cases that come before it during any term. As set forth in the SCOTUS Blog: “In most circumstances, the Supreme Court has discretion whether or not to grant review of a particular case. Of the 7,000 to 8,000 cert petitions filed each term, the court grants certiorari and hears oral argument in only about 80. Granting a cert petition requires the votes of four justices.” 

Since the High Court reviews only a fraction of the cases brought to it in any given term, and, since the High Court is averse to hearing Second Amendment cases, it will only be on a wing and a prayer that the Supreme Court is likely to take up any Second Amendment case, given the Court’s present composition. And, if it does so at all, it will likely deny review on the heels of the New York City gun transport case, any further Second Amendment case this Term because the Supreme Court Term is effectively over in late June, hardly more than one month from now as of the posting of this article.

Note, “A Term of the Supreme Court begins, by statute, on the first Monday in October. . . . The Term is divided between ‘sittings,’ when the Justices hear cases and deliver opinions, and intervening ‘recesses,’ when they consider the business before the Court and write opinions. Sittings and recesses alternate at approximately two-week intervals.” 

Moreover, as the site, U.S. Courts.gov points out: “The Court is, typically, in recess from late June/early July until the first Monday in October. . . . The Court hears oral arguments in cases from October through April [and] All opinions of the Court are, typically, handed down by the last day of the Court’s term (the day in late June/early July when the Court recesses for the summer). With the exception of this deadline, there are no rules concerning when decisions must be released. Typically, decisions that are unanimous are released sooner than those that have concurring and dissenting opinions. While some unanimous decisions are handed down as early as December, some controversial opinions, even if heard in October, may not be handed down until the last day of the term.  

SUPPOSE THE HIGH COURT DOES SECURE FOUR VOTES NECESSARY TO REVIEW A SECOND AMENDMENT CASE, WHAT THEN?

Second, even if, by some strange happenstance the Supreme Court does grant review in one of the pending Second Amendment cases, in the next few weeks, especially given the impact of the Communist Chinese Coronavirus, one may justifiably ask when will that case be briefed; when will it be argued in oral hearing before the Court; and when might the case be decided? And, most significantly: how will that case be decided?

Given that Chief Justice Roberts and Associate Justice Kavanaugh both sided with the liberal wing of the High Court on the New York City gun transport case, that fact alone is a matter for deep concern.

In any event, all of this—from voting to hear a case, to the releasing of a decision in that case—takes an inordinate amount of time and, with a General U.S. Presidential election coming up in November 2020, an election just around the corner, both the liberal wing and conservative wing of the High Court may have their own good reasons for not taking up another Second Amendment case this Term.

Consider the ramifications of the results of the 2020 U.S. Presidential election, both on the eventual composition of the Supreme Court and on the manner in which a Second Amendment case would be decided.

Supreme Court Justices, no less than average citizens, do surely manifest deep concern over the outcome of the upcoming U.S. Presidential election. And whom it is that wins the election will be able to actuate one or the other of two alternate, incompatible, radically distinct visions for the Nation.

One vision is grounded on the political and social philosophy of Individualism, championed by the Founders of our Free Republic, and actualized in the Constitution that the States, in existence at the time, had ratified. That Constitution is the blueprint of the structure of our Nation, where the people themselves are sovereign: a notion manifest in no other nation in the world despite talk, for example, by the rulers of the EU, holed up in Brussels, who govern the nations comprising the EU. 

These so-called “elites” talk endlessly, and disingenuously, and deceptively of the EU’s liberal democratic values. But that is nothing more than flimflam and flummery.

The second vision is grounded on the political and social philosophy of Collectivism—a term that is wending its way more frequently into political discourse, as the Radical Left talks carefully, non-critically, and often glowingly, about the benefits of life in both the EU and in the Autocratic, Communist Collectivist regime of Xi Jinping of China. See Arbalest Quarrel Article, titled, “The Modern Civil War: A Clash of Ideologies, posted October 6, 2018.” Note: In that article, we point to Judge Brett Kavanaugh’s confirmation as an Associate Justice of the U.S. Supreme Court, which, at the time of the posting of the article, had just occurred.

Would that we knew then what we know now, having seen Justice Kavanaugh’s insipid, seemingly groveling, duplicitous Concurring Opinion in the New York City Gun Transport case. We said, at the time:

“With Brett Kavanaugh now on the High Court, the Individualists’ vision for this Country is now more likely to prevail in the decades ahead than is the vision of the Collectivists. Had Hillary Clinton prevailed in the 2016 U.S. Presidential election, and thereupon nominated individuals to the High Court who view the Constitution of the United States as a “Living Document,” susceptible to massive judicial and legislative revision, the direction of this Country would have continued along the path created for it by the Bush and Clinton clans, and by Barack Obama. Americans would have seen the eventual loss of this Country’s independence and sovereignty, and, concomitantly, Americans would have seen the loss of the fundamental, unalienable rights guaranteed to them, as codified in the Nation’s Bill of Rights. The losses would have been drastic, and those losses would have been assured. Thankfully, a dire future for this nation and its people is less likely to happen now, as the election of Trump has enabled the Nation to pivot back to the path laid out for us by the founders of the Nation. But there is still much work ahead for the American people. We must remain ever vigilant.”

THE MOST IMPORTANT U.S. PRESIDENTIAL ELECTION OF THE LAST TWO CENTURIES IS UPON US

The principles of Collectivism were anathema to the founders of our Nation; and those principles are wholly incompatible with the Constitution the framers designed, predicated on the tenets of Individualism, the foundation of our Nation. The two political and social philosophies, Individualism and Collectivism, cannot be reconciled. And those who wish to implement the principles of Collectivism in our Nation know this. That is why they talk openly of major amendments to the Constitution.

Indeed, some Collectivists talk of doing away with the U.S. Constitution altogether, as it would be far easier to draft a new constitution grounded on the principles of Collectivism than to try to reconfigure the original Constitution, grounded as it is on a completely different set of precepts: those of Individualism. And we will be headed in a very disturbing direction if the Collectivists do succeed in taking firm control over the reins of Government.

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WITHOUT AN ARMED CITIZENRY EVERY CITIZEN REMAINS AT THE MERCY OF THE STATE

Since an armed citizenry operates as the one true signifier and test of the sovereignty of the people over Government, and the only effective vehicle through which the sovereignty of the people over illegal Government usurpation and accumulation of power is contained, the armed citizenry is truly the sine qua non of a Nation founded on the tenets of Individualism. And in only one such Nation are the people truly sovereign: the United States.

Consider: For all the lofty talk of human rights and with all the “rights” delineated in the EU’s “Charter of Fundamental Rights,” as one prime example—and there are over six dozen of them at last count—you would be hard-pressed to find any assertion of the right of the people of the EU to keep and bear arms. There isn’t one. Do you think the omission was an accident? 

THE LIBERAL WING OF THE HIGH COURT EXTOLS THE POLITICAL AND LEGAL FRAMEWORK OF THE EU, NOT THE U.S.

Several U.S. Supreme Court Justices such as, and particularly, Ruth Bader Ginsburg, have little regard for the U.S. Constitution, as they consider it to be as she says, “rather old” and, therefore, archaic, reminiscent of an earlier time and earlier values that they also perceive as archaic, mutable, irrelevant, and even counter to the Collectivist political and social orientation they support or sympathize with. Their vision of this Country does not include the presence of an armed citizenry. Thus, they, understandably, would express reservation, hesitation in voting to grant review of another Second Amendment case at this time: one that truly impacts the very core of it. These liberal wing U.S. Supreme Court Justices are awaiting the installation of a Collectivist as U.S. President, as are all those who espouse the principles and tenets of Collectivism.

If the Radical Left Democrats defeat Trump in the upcoming November 2020 general election, might not that embolden Roberts to join the liberal wing of the Court, to take up another Second Amendment case for the express purpose to weaken the central holdings of Heller and McDonald, if not to overturn the central holdings of those cases outright?

After all, it only takes one Justice, say, John Roberts, to join the liberal wing, to defeat a Second Amendment case. And, what  Justice Kavanaugh would do with it is anyone’s guess, given his awkward, almost servile, and definitely odd concurring opinion in the recent New York City gun transport case.

The liberal wing of the U.S. Supreme Court Court has made their deep animosity toward the Second Amendment known. The Liberal wing of the High Court therefore fervently relishes the opportunity to overturn Heller and McDonald. Make no mistake about that. The liberal wing of the High Court has made clear its deep hostility toward and its visceral loathing of the right of the people to keep and bear arms. That isn’t a secret.

This is predicated on the temperament of Justices Breyer, Ginsburg, Sotomayor, and Kagan—a psychological temperament that informs their methodological approach to High Court case analysis; a methodological approach and jurisprudential philosophy that predisposes them to undercut the Second Amendment, always maintaining that the right of the people to keep and bear arms amounts to a collective right if such a right exists at all; conferring no individual right to own and possess firearms.

The liberal wing of the High Court long ago opined that both Heller and McDonald were wrongly decided. At the time Heller was decided in 2008, the dissenting Justices included: Breyer, Stevens, Souter and Ginsburg. And, at the time McDonald was decided, the dissenting Justices included: Breyer, Stevens, and Sotomayor.

Ostensibly a jurisprudential conservative who retired in 2009, Associate Justice David Souter, nominated by then-President George H.W. Bush, turned out to be a major disappointment. His replacement, Elena Kagan, nominated by Donald Trump’s predecessor, Barack Obama, would come as no surprise. One needn’t guess her jurisprudential philosophy toward the Second Amendment, all of which is predicated on the temperament of the liberal wing of the High Court that now comprises Associate Justices Breyer, Ginsburg, Sotomayor, and Kagan—a psychological temperament that informs their jurisprudential philosophy and a methodological approach toward case analysis that is wholly unlike that of the late eminent Justice Scalia and that Justices Thomas and Alito.

The liberal wing of the Court abhors the very idea that Americans have a fundamental and immutable and unalienable, natural right to own and possess firearms. If they vote to hear a Second Amendment case, it will only be with a view toward undercutting the Second Amendment and they will only vote to hear a Second Amendment case once they feel they have sufficient support to compose the majority opinion on the matter.

The New York City gun transport case was the most innocuous of Second Amendment cases for the High Court to take up when compared to other cases that had come before it. Perhaps that was one reason they granted review of the New York City case.

Moreover, the New York City case invited the New York City Government to amend the law to encourage the liberal wing of the High Court to avoid deciding the case on the merits.

And so, the liberal wing did find the case mooted by a change in the law. No surprise there. And Chief Justice Roberts readily jumped on board. No surprise there either. But the decision of Justice Kavanaugh, joining the liberal wing and Roberts majority rather than the dissenters, Justices Alito, Thomas, and Gorsuch—that was a surprise and far, far from a pleasant one.

Who is it that Justice Kavanaugh thinks he is fooling? He knows damn well how difficult it is for a Second Amendment case—any Second Amendment case—to be heard. Americans can rest assured that Justice Thomas clued Kavanaugh in on that if Kavanaugh harbored any doubt about that. And Americans are supposed to sit on their hands, and hold their breath waiting for the next Second Amendment case to be taken up by the Court, gaining sustenance from a conjecture tucked away in an absurd Concurring Opinion?

Unfortunately, Associate Justice Brett Kavanaugh isn’t the only person on the High Court infected with St. Vitus Dance, ever meandering, weaseling, tap dancing around the Second Amendment rather than giving it the attention and respect it deserves, dealing squarely with it, to protect the core of it.

And the Third Branch of Government isn’t our only concern.

Recall how the Republican-controlled House and Senate failed to enact national concealed handgun carry into law. Republicans could easily have enacted 115 H.R. 38 into law if they really wanted to. But they didn’t.

Back on November 30, 2018, the Arbalest Quarrel wrote, in our article titled, “As Deadline Draws Near, Supporters Of Second Amendment Demand U.S. Senate Vote On National Concealed Handgun Carry Reciprocity,”

“The Senate Judiciary Committee has been sitting on the bill that was sent to Senate Majority leader Mitch McConnell, last December 2017, when it passed the Republican-controlled House. The version of national concealed handgun carry reciprocity that passed the House is designated, 115 H.R. 38, “Concealed Carry Reciprocity Act of 2017.” Once Senator McConnell received it, he sent it immediately to the Chairman of the Judiciary Committee, Charles Grassley, for action. Clearly, no work was done on it; and a year has gone by since the Judiciary Committee had received it.”

Nothing was done by the Republican Controlled Congress in 2017, at that time, to strengthen Americans’ right to keep and bear arms. And, now, at this juncture—with the decision of Chief Justice Roberts and Associate Justice Kavanaugh, having joined the liberal wing of the High Court, in the New York City gun transport case—nothing yet has been done to preserve and strengthen our sacred Second Amendment right.

Do you think, perhaps, that all too many legislators and jurists, adherents of Collectivism, who claim to support the Second Amendment to the U.S. Constitution, really don’t? Is talk of support for the right of the people to keep and bear arms just that: merely talk? Is preservation of our Bill of Rights merely a will-o’-the-wisp, an elaborate play, the purpose of which is to placate a rightfully embittered American electorate, facilitating the slow, inexorable, erasure of the very notion of fundamental, immutable, God-given rights that fall beyond the lawful power of Government to denigrate and eradicate?

As we have pointed out in our previous article, some Collectivists in the U.S. suggest that no constitution is necessary. Taking their cue from Great Britain which is said to have an “unwritten constitution” (which really means NO constitution), the Collectivists surmise that changes to Government and changes to the relationship of the people to Government should always be flexible, malleable—subject to change in accordance with the whims of those who wield power. For these rulers, adherents of Collectivism, any constitution is too restrictive and any rights afforded the populace must always be subject to modification or abrogation as the rulers dictate. And, they have made that plain. The Collectivists seek to rewrite portions of the Articles, and they seek to rewrite, or to torturously and tortuously reinterpret, or to abrogate altogether, or simply to ignore portions of our fundamental, unalienable, immutable, natural rights—our Bill of Rights—giving special attention to the Second Amendment that they perceive as the greatest single threat to their illegal, unconscionable usurpation of power.

The American people must not let these Radical Left Collectivist insurrectionists succeed.

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Copyright © 2020 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.