WHY DO SOME STATE GOVERNMENTS AND THE FEDERAL GOVERNMENT BLATANTLY DEFY SECOND AMENDMENT RULINGS OF THE UNITED STATES SUPREME COURT?
POST-BRUEN—WHAT IT ALL MEANS AND WHAT ITS IMPACT IS BOTH FOR THOSE WHO SUPPORT AND CHERISH THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS AND THOSE WHO DO NOT; THOSE WHO SEEK TO UNDERMINE AND EVENTUALLY DESTROY THE EXERCISE OF THE RIGHT AND THOSE WHO SEEK TO PRESERVE AND STRENGTHEN THE RIGHT BOTH FOR THEMSELVES AND THEIR DESCENDANTS
WHY DO SOME STATE GOVERNMENTS AND THE FEDERAL GOVERNMENT BLATANTLY DEFY SECOND AMENDMENT RULINGS OF THE UNITED STATES SUPREME COURT?
Scarcely eight years had passed since ratification of the U.S. Constitution in 1788 when the question of the power and authority of the U.S. Supreme Court came to a head in the famous case of Marbury versus Madison.
The High Court made its authority felt in a clear, cogent, categorical, and indisputable language in this seminal 1803 case.
The facts surrounding the case are abstruse, generating substantial scholarly debate. But what some legal scholars discern as having little importance to the logical and legal gymnastics the Court at the time had to wrestle with, and upon which legal scholars, historians, and logicians have directed their attention today, has become a cause célèbre today:
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. . . . This is of the very essence of judicial duty.” Marbury vs. Madison, 5 U.S. 137; 2 L. Ed. 60; Cranch 137 (1803)
Article 3, Section Two of the U.S. Constitution establishes the powers of the Court:
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution. . . .”
The Constitution’s Framers sought to make the import of the articles and amendments to it as plain and succinct. And they did a good job of it.
Even so, ruthless, powerful individuals in the Federal Government and in the States ever strive to thwart the plain meaning and purport of the U.S. Constitution in pursuit of their own selfish interests, imputing vagaries to language even where the language is plain and unambiguous to serve their own selfish ends to the detriment of both Country and people. And that ruthlessness extends to those who, with vast sums of money at their disposal, influence these “servants of the people,” in pursuit of and to achieve their own nefarious interests and goals.
Back then, over two centuries ago, when the U.S. Supreme Court agreed to hear the case of Marbury vs. Madison, the Court deftly side-stepped the delicate political and legislative issues of the day that gave rise to the case and carved out the Court’s own territory.
The High Court made two points abundantly clear:
One, the U.S. Supreme Court does not answer to either the Executive or Legislative Branch. It is not to be perceived as a poor stepchild of either of those two Branches. It is a Co-Equal Branch of the Federal Government.
Two, on matters impacting the meaning and purpose of the U.S. Constitution, neither the U.S. President nor Congress can lawfully ignore the Court’s rulings. This means that, where the Court has spoken on challenges to unconstitutional laws, finding particular laws of Congress to be unconstitutional, Congress has no lawful authority to ignore and countermand those rulings, or circumvent those rulings by enacting new laws that purport to do the same thing as the laws that the Court has struck down. Nor can the U.S. President cannot override the Constitutional constraints imposed on his actions.
The States, too, are forbidden to ignore Supreme Court rulings, striking down unconstitutional State enactments. Nor are the States permitted to repurpose old laws or create new laws that do the same thing—operate in violate of the U.S. Constitution.
Jump forward in time to the present day.
The Federal Government and all too many State and municipal Governments routinely defy the High Court’s rulings, engaging in unconstitutional conduct.
But this defiance and even contempt of the High Court rulings leaves an American to ponder, “why?”
Even cursory reflection elucidates the answer to that question. The answer is as plain as the text of Article Three, Section 2 of the Constitution, itself.
The High Court has neither power over “the purse” that Congress wields, nor power over the Nation’s “standing army” the Chief Executive controls.
Yet, the fact remains the U.S. Supreme Court is the only Branch of Government with ultimate say over the meaning of the U.S. Constitution, as Marbury made clear, well over two hundred years ago. To say what the Constitution means, when conflict or challenge to that meaning arises is within the sole province of the High Court.
Unfortunately, without the capacity to withhold funds over the operation of Government, nor power to enforce its judgments by force of arms, the Court’s rulings are all too often, blatantly ignored or cavalierly dismissed.
As if this weren’t bad enough, the mere fact of the Court’s authority is now actively contested.
Audaciously, some individuals in Government, in the Press, and in academia, have recently argued the U.S. Supreme Court’s authority to say what the law is, should not be vested in the High Court, regardless of the strictures of Article Three, Section Two of the U.S. Constitution.
Consider, an Op-Ed, titled, “Should the Supreme Court Matter So Much?” The essay appeared in The New York Times, and not that long ago, in 2018, written by Barry P. McDonald, an attorney and Law Professor no less who exclaims:
“When the founders established our system of self-government, they didn’t expend much effort on the judicial branch. Of the roughly three and a half long pieces of inscribed parchment that make up the Constitution, the first two pages are devoted to designing Congress. Most of the next full page focuses on the president. The final three-quarters of a page contains various provisions, including just five sentences establishing a ‘supreme court,’ any optional lower courts Congress might create and the types of cases those courts could hear.
Why was the judicial branch given such short shrift? Because in a democracy, the political branches of government — those accountable to the people through elections — were expected to run things. The courts could get involved only as was necessary to resolve disputes, and even then under congressional supervision of their dockets.
It was widely recognized that the Supreme Court was the least important of the three branches: It was the only branch to lack its own building (it was housed in a chamber of Congress), and the best lawyers were seldom enthusiastic about serving on it (John Jay, the Court’s first chief justice, resigned within six years and described the institution as lacking ‘energy, weight and dignity’).
When disputes came before the Supreme Court, the justices were expected to ensure that Americans received ‘due process’ — that they would be ruled by the ‘law of the land’ rather than the whims of ruling individuals. In short, the Court was to play a limited role in American democracy, and when it did get involved, its job was to ensure that its judgments were based on legal rules that were applied fairly and impartially.
What about the task of interpreting the Constitution? This question is the subject of some debate, but the founders most likely believed that each branch of government had the right and duty to determine for itself what the Constitution demanded, unless the Constitution was clearly transgressed. If the Constitution was clearly transgressed, the Supreme Court had a duty to hold Congress or the president accountable — but only in the case before it. The founders almost certainly did not envision a roving mandate for the Supreme Court to dictate to Congress, the president or state governments what actions comported with the Constitution (unless they were a party to a case before it).”
The question of interpreting the Constitution is the subject of some debate? Really?
Apparently, this Law Professor, Barry McDonald, has wholly forgotten the import of Marbury versus Madison, a case burnt into the mind of every first-year law student. His remarks are eccentric, disturbing, and disheartening.
If the Framers of the U.S. Constitution really had such a low opinion of the High Court, they would not have constructed a Government with a Third Branch but would have subsumed it into one of the first two? Obviously, the Framers thought enough about the singular importance of the U.S. Supreme Court, to include it in the framework of the Federal Government, and as a co-equal Branch of that Government.
It is one thing to ignore the U.S. Supreme Court’s rulings because of an antipathy toward those rulings and claim the Court can’t do anything about it anyway because the Court hasn’t power to enforce its rulings. That is bad enough. But it is quite another thing to argue the Court has no reason to exist, ought not to exist, and thereupon rationalize doing away with the Third Branch of Government or otherwise reducing its authority to render rulings to a nullity by Executive Branch or Legislative Branch edict.
Application of alien predilections, predispositions, and ideology to the Nation’s governance is a path to abject tyranny; to dissolution of the Republic; defilement of the Nation’s culture and history and heritage; destruction of societal order and cohesion; and abasement and subjugation of a sovereign people. The Nation is on a runaway train, running full throttle, about to make an impact with a massive brick wall.
The New York Times just loves to publish articles by credentialed individuals who hold views well beyond the pale of those held by their brethren if those views happen to conform to, and strengthen, and push the socio-political narrative of the newspaper’s publishers and editorial staff.
Use of such dubious, fringe views to support a viewpoint is a classic example of “confirmation bias,” an informal fallacy.
There are dozens of informal fallacies. And the American public is force-fed ideas that routinely exemplify one or more of them.
This defiance of State and Federal Government actors to adhere to the Court’s rulings and even to contest the authority of the Court is most pronounced, most acute, and, unfortunately, most prevalent, in matters pertaining to the import of fundamental, unalienable rights and liberties of the American people—and none more so than the citizen’s right of armed self-defense.
In the first decade of the 21st Century, the U.S. Supreme Court ruled clearly and unequivocally in Heller versus District of Columbia that the right of the people to keep and bear arms is an individual right, unconnected with one’s service in a militia. Associate Justice Antonin Scalia penned the majority opinion.
Among its other rulings in Heller, the High Court held the District of Columbia’s blanket ban on handguns impermissibly infringes the core of the Second Amendment. It thereupon struck down the D.C. ban on handguns as unconstitutional.
And the Court also held a person has a right to immediate access to a handgun in one’s self-defense. Not surprisingly, Anti-Second Amendment jurisdictions disliked these rulings and were intent on disobeying them, and arrogantly defied the Court.
Looking for an excuse to defy Heller, these jurisdictions argued that Heller applies only to the Federal Government, not to them. That led to an immediate challenge, and the High Court took up the case in McDonald vs. City of Chicago.
Here, Justice Alito writing for the majority, opined the Heller rulings apply with equal force to the States, through operation of the Fourteenth Amendment.
Did the Anti-Second Amendment States abide by the Court’s rulings, after McDonald? No, they did not!
They again defied the Court, conjuring up all sorts of reasons to deny to the American citizen his unalienable right to keep and bear arms in his self-defense.
The States in these Anti-Second Amendment jurisdictions claimed that, even if a person has a right to armed self-defense inside his home, the right to do so does not extend to the carrying of a handgun outside the home.
The State and Federal Courts in these jurisdictions conveniently misconstrued the Supreme Court’s test for ascertaining the constitutionality of Government action infringing exercise of the right codified in the Second Amendment.
These Anti-Second Amendment jurisdictions also placed bans on semiautomatic weapons, fabricating a legal fiction for them; referring to them as “assault weapons.”
American citizens challenged the constitutionality of all these issues. And many of these cases wended their way up to the U.S. Supreme Court, only to be thwarted because the Court could not muster sufficient support among the Justices to deal with the flagrant violation of Second Amendment Heller and McDonald rulings and reasoning.
One of these cases was the 2015 Seventh Circuit case, Friedman versus City of Highland Park, Illinois.
The liberal wing of the Court didn’t want the case to be heard. That was no surprise.
But, apparently, Chief Justice John Roberts, and Associate Justice Anthony Kennedy didn’t want to hear the case either.
Justices Clarence Thomas and Antonin Scalia were furious and said so in a comprehensive dissenting opinion.
Had the Court taken up the Friedman case, Americans would have been spared this nonsense of “assault weapon” bans. The Court would have ruled these bans unconstitutional on their face, in which event the Federal Government and Anti-Second Amendment State governments would be hard-pressed to make a case for wasting valuable time and taxpayer monies dealing with an issue the High Court had ruled on. Unfortunately, the Friedman case and many others were not taken up by the Court.
Americans are compelled to continue to spend considerable time and money in challenging a continuous stream of unconstitutional Second Amendment Government action. And often, this is a futile expenditure of time, money, and effort, albeit a noble and necessary one all the same.
NEW YORK GOVERNOR KATHY HOCHUL UNFAZED BY CHALLENGES TO NEW YORK GUN LAW: “GO FOR IT,” SHE RETORTS!
One of the most persistent and virulently Anti-Second Amendment jurisdictions, that has spurred numerous challenges to unconstitutional and unconscionable constraints on the Second Amendment through the decades, is New York.
In 2020, four years after Associate Justice Antonin Scalia died, under disturbingly suspicious circumstances, and shortly after Justice Anthony Kennedy retired from the Bench, and the U.S. Senate confirmed President Donald Trump’s first nominee, Brett Kavanaugh, to a seat on the High Court, the Court took up the case, NYSRPA vs. City of New York—often referred to colloquially as the “NY Gun Transport” case.
An extensive explication of that case is found in a series of AQ articles posted on our website. See, e.g., our article posted on April 27, 2020, and reposted in Ammoland Shooting Sports News on the same date.
A second U.S. Supreme Court case, coming out of New York, NYSRPA versus Bruen, officially released on June 23, 2022, ruled New York’s “proper cause” requirement unconstitutional.
New York Governor Kathy Hochul and the Democrat Party-controlled Legislature in Albany thereupon struck the words “proper cause” from the State’s Gun Law, the Sullivan Act, codified in Section 400.00 of the State’s Penal Code. But, doing so served merely as a blind.
Had the Hochul Government refrained from tinkering with the rest of the text of the Statute and other Code sections, it might well have avoided further constitutional challenges from justifiably irate New Yorkers. It did not.
Hochul and Albany did not stop with the striking of “proper cause” from the Gun Law. It went well beyond that. Her Government and Albany wrote a detailed set of amendments to the Gun Law.
The package of amendments, titled the “Concealed Carry Law Improvement Act,” “CCIA,” do not conform to the Bruen rulings but, rather, slither all around them.
On a superficial level, deletion of the words “proper cause” might be seen by some, as Hochul and Albany had perhaps hoped, to forestall legal challenge. But, if challenge came, time would be, after all, on the Government’s side. And Hochul knew this.
The Government has money enough to fight a protracted Court battle. The challenger, more likely, does not.
Even finding a suitable challenger takes considerable time, exorbitant sums of money to file a lawsuit, and substantial time to take a Second Amendment case to the U.S. Supreme Court.
And it is far from certain the Court will review a case even if a petition for hearing is filed, for the Court grants very few petitions.
For well over a century the New York Government has inexorably whittled away at the right of armed self-defense in New York. And it has successfully weathered all attacks all the while.
The New York Government wasn’t going to let the U.S. Supreme Court now, in the Bruen case, to throw a wrench into attaining its end goal: the elimination of armed self-defense in New York.
Much energy went into the creation of the CCIA. It is a decisive and defiant response to the U.S. Supreme Court and furthers its goal to constrain armed self-defense in the public sphere.
Likely, given the length, breadth, and depth of the CCIA, the Government saw Bruen coming, long before the case was filed, and had ample time to draft the contours of the CCIA a couple of years ago. A clue that another U.S. Supreme Court case, challenging New York’s Gun Law, would loom, presented itself in Associate Justice Samuel Alito’s dissenting opinion, joined by Justices Clarence Thomas and Neil Gorsuch.
Justices Alito, Thomas, and Gorsuch had made known their strong disapproval of the way the “Gun Transport” case was handled, after the Chief Justice and Associate Justice Brett Kavanaugh cast their lot with the Anti-Second Amendment liberal wing of the Court, allowing the case to be unceremoniously and erroneously shunted aside, sans review of the merits of the case.
A day of reckoning with New York’s insufferable Gun Law was coming. The Government of New York could not reasonably doubt that. The core of the Gun Law would be challenged, and the U.S. Supreme Court would hear that challenge.
The Government likely worked up a draft response to an antagonistic U.S. Supreme Court ruling on the core of the Gun Law in 2020, shortly after the New York “Gun Transport” case ruling came down. That draft response would become the CCIA.
The Government likely completed its draft of the CCIA well before Bruen was taken up by the High Court. The Government had only to fine-tune the CCIA immediately after oral argument in early November 2021.
And the Government did so. Hochul almost certainly received advance notice of the text of the majority opinion within days or weeks after the hearing before the New Year had rung in.
Nothing else can explain the speed at which Albany had passed the CCIA and Hochul had signed it into law: July 1, 2022, just eight days after the Court had released the Bruen decision, June 23, 2022.
The CCIA amendments to the Gun Law integrate very nicely with and into other recent New York antigun legislation, passed by Albany and signed into law by Hochul.
Thus, contrary to what the Governor’s website proclaims, the amendments were not “devised to align with the Supreme Court’s recent decision in NYSRPA v. Bruen.” Rather these amendments were devised to align with other New York antigun legislation. What does this portend for New Yorkers?
Those New Yorkers who had hoped to be able to obtain a New York concealed handgun carry license with relative ease will now find procuring such a license no less difficult than before the enactment of the CCIA.
Most hard-hit are those present holders of New York City and New York County unrestricted concealed handgun carry licenses.
The “proper cause” hoop that present holders of such concealed handgun carry licenses were able to successfully jump through is of no use to them now.
These renewal applicants must now satisfy a slew of new requirements—more draconian than the original ones they had previously successfully navigated.
All New York concealed handgun carry applicants are now in the same boat. And meeting the new requirements are exceedingly difficult.
Despite the clear intent of the Bruen rulings, to make it easier for more Americans to obtain a New York concealed handgun carry license, it is now harder.
Likely, very few individuals will be able to successfully pass through the hurdles necessary to obtain a New York license the CCIA requires.
Thus, getting a license will remain a coveted prize, difficult to gain as previously, and likely even more so.
And the few individuals who do happen to secure a valid New York concealed handgun carry license will find themselves in a precarious situation for all the troubles they had in getting it.
These new license holders will find exercise of the right of armed self-defense outside one’s home or place of business, in the public realm, full of traps and snares that did not previously exist.
And there is something more alarming.
The mere act of applying for a concealed carry license—whether the license is issued or not—now requires the applicant to divulge a wealth of highly personal information that, hitherto, an applicant never had to divulge, and the licensing authority had never asked an applicant to divulge.
And, if a person fails to secure a license, his personal data will remain in his State police file, indefinitely, and will likely be turned over to the DOJ, DHS, ATF, IRS, and/or to a slew of State or Federal mental health agencies.
All manner of harm may be visited upon the person that otherwise would not have occurred had the individual not bothered to apply for a New York concealed handgun carry license in the first place. To apply for a New York concealed handgun carry license, an applicant may unwittingly be alerting both the New York Government and the Federal Government that he is a “MAGA” supporter, and therefore a potential “Domestic Terrorist.” And, if so, he is then targeted for special treatment: surveillance, harassment, exploitation, or extortion. And he cannot claim a violation of his Fourth Amendment right to be free from unreasonable searches and seizures because he voluntarily relinquished that right when he applied for a concealed handgun carry license.
If one thinks this is farfetched, consider the excesses committed by the Biden Administration directed to average Americans in the last several months.
We explore these troubling matters, in connection with the application requirements for a New York concealed handgun carry license, in the next few articles.
Copyright © 2022 Roger J. Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
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