BRUEN SHOULD NOT HAVE BEEN NEEDED BUT WAS NEEDED BECAUSE COURTS REFUSED TO COMPLY WITH HELLER AND MCDONALD

POST BRUEN—WHAT IT ALL MEANS BOTH FOR THOSE WHO SUPPORT THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS AND THOSE WHO SEEK TO UNDERMINE AND EVENTUALLY DESTROY EXERCISE OF THE RIGHT

MULTISERIES

PART FOUR

As we alluded to, in our earlier articles on Bruen, the High Court’s decision is meant to redirect the actions of those jurisdictions that have misread and misapplied Heller.

As one reads the Bruen Majority Opinion, and the Concurring Opinions, it becomes clear that the salient purpose of the Court’s Majority is to redirect those jurisdictions toward a proper understanding of the import and purport of the Second Amendment to the U.S. Constitution, as explained in Heller and McDonald. Bruen is intended to instill Courts with an appreciation of the proper standard of review to be used when reviewing Courts are called upon to test the constitutionality of government actions that impact the Second Amendment.

Too many jurisdictions have, heretofore, intentionally, and stubbornly, or accidentally and carelessly, failed to heed the dictates of the two seminal Second Amendment holdings that impact all Second Amendment cases—Heller and McDonald. Henceforth, in the 21^st Century, this failure to heed Heller and McDonald is not acceptable.

The Bruen decision as propounded is meant to correct serious irregularities in the judicial standard those Courts have heretofore employed— “intermediate scrutiny”/ “interest-balancing”—when reviewing the Constitutionality of Government actions impacting the Second Amendment.

But truth to tell, this wasn’t the salient reason the High Court took up the case. And, notwithstanding that the conservative wing of the Court reviewed the case at all, this was not by wish of the liberal wing of the Court. It required the assistance of Chief Justice John Roberts, and his faithful colleague, Justice Brett Kavanaugh, as well, if the case were to be reviewed at all.

In that regard, Bruen is just like Heller. For Heller to be accepted for review, it required the cooperation of Chief Justice John Roberts and Associate Justice Anthony Kennedy. Their votes were necessary if the conservative wing—at the time, Justices Scalia, Thomas, and Alito—were to be able to hold, finally, what had always been plain: that the right of the people to keep and bear arms is an individual right. It is not connected to one’s service in a militia. The dependent clause provides a rationale for the right—a mechanism to forestall tyranny of Government from taking root—but it is not at all to be considered a limitation on the exercise of the right. That would make no sense, on logical grounds alone, for it would reduce the right to a nullity.

But, just as Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alito had to make concessions to the Chief Justice, John Roberts, and to Associate Justice Anthony Kennedy to get both onboard in Heller, so, similarly, Associate Justices Thomas and Alito had to make concessions to the Chief Justice and to Justice Kavanaugh to get them onboard in Bruen. Doing so ultimately made for a debilitated Bruen. And, as we explain in our continuing comprehensive exposition, Bruen is a markedly weak case.

Bruen is much less than it could have been and much less than it should have been. That is to say, the entire handgun licensing structure of New York should have been struck down. But it wasn’t. 

The Court could have done this in the New York City “gun transport case” if the Court had decided the case on the merits as both Justices Clarence Thomas and Samuel Alito wanted. That didn’t happen. Justice Roberts, and the liberal wing of the Court, didn’t want that to happen. And Justice Kavanaugh acquiesced to the wishes of the Chief Justice in that case. Similarly, in Bruen, the U.S. Supreme Court might have struck down the handgun licensing structure of New York that had existed for over one hundred years as it is an affront to the natural law right of armed self-defense. But the liberal wing didn’t want that to happen, and Justice Roberts didn’t want to see that happen either. Yet that was the raison d’être why Bruen came before the Court.

If but tacitly, Petitioners, nonetheless, sought to strike down the entirety of the handgun licensing regime in New York, as it is an abomination. It was, in its very design, intended to severely hobble those Americans who reside in New York, from exercising their right to keep and bear arms for the purpose of self-defense. New York intended to inhibit exercise of those citizens who reside in New York of their God-Given natural law right of armed self-defense.

Chief Justice Roberts didn’t want to see the handgun licensing structure of New York struck down, and he cajoled Justice Kavanaugh to join him in preventing a holding in Bruen that would see the Court doing just that: striking down the one hundred-and eleven-year-old Sullivan Act—the progenitor of the entire handgun licensing structure of New York—which has only grown more robust and egregious through time.

And the liberal wing of the Court certainly didn’t want to see the handgun licensing regime of New York collapsing. For their goal is to see an end to the Second Amendment. The Sullivan Act is consistent with that goal.

Bruen, unlike the New York City gun transport case that preceded it, was decided on the merits, but the ruling of the Court—there really was only one ruling—did not do much for Americans who desire to exercise their right to keep and bear arms unimpeded by Government. To the contrary, it made matters worse—much worse for present holders of New York City concealed handgun carry licenses.

Thus, because Justices Thomas and Alito were prevented from striking at the core of New York’s handgun licensing regime, they spent most of their energies laying out the Heller standard for review. If one stops to think about that, the standard of review that Courts are supposed to apply and are supposed to adhere to was never a major issue in the case, and that it existed at all, was only as tangentially related to the key concern: the unconstitutionality of New York’s entire handgun licensing scheme. In other words, if New York Courts had applied the appropriate standard in reviewing Government actions impacting the Second Amendment, as the Courts should have been doing all along, on their own initiative, then Bruen would never have been necessary. The New York Courts would have themselves struck down the New York handgun licensing regime a long time ago, as blatantly unconstitutional, and Petitioners in the Bruen case, and many other American citizens residing in New York, would have, long ago, been able to exercise their right of armed self-defense without Government interfering with their inalienable right to do so. And that in and of itself would have taken care of the notorious crime wave impacting the City of New York, in particular. That New York Courts have failed to do so and that they, in fact, have embraced the unconstitutionality of New York Government harassment of those citizens who simply wish to exercise their right of armed self-defense, the U.S. Supreme Court could have done so in Bruen, and that would make sense after methodically going through application of the Heller test. Yet, the High Court stopped short of doing that. The Court left the handgun licensing scheme intact. It is our belief that Associate Justices Thomas and Alito would have liked to have been done with it, for the last time, and would have done away with it, but for reluctance on the part of the Chief Justice himself, and, on the part of Justice Kavanaugh as well, apart from the liberal wing of the High Court.  

For far too long, all too many Federal and State Courts have mangled Heller and McDonald, wrongly reducing the right of the people to keep and bear arms to a “second-class right”—a point Justice Thomas made in his comment to the 2015 Friedman case that the Court failed to grant certiorari on, and that he pointed to again in Bruen. Justice Thomas emphasized that the States cannot reduce the fundamental right of the people to keep and bear arms to a “second-class right.” But many State Governments have done just that. And the State and Federal Courts in those jurisdictions had routinely held such Government actions as Constitutional when they were not.

More inclined to adopt Dissenting Justice Breyer’s argument and reasoning and that of other liberal wing Justices in Heller and McDonald, rather than the sound judicial reasoning and rulings of the Majority, the lower Courts were legally bound to follow, those Courts had slowly eroded Heller and McDonald. Through time this resulted in the production of a substantial body of case law that has the invidious and insidious effect of striking down Heller and McDonald majority opinion rulings and reasoning. Thus, the lower federal and state Courts replace Majority Opinion Conservative wing rulings, respectful of the Second Amendment, with liberal wing musings, disrespectful of and abhorrent of the Second Amendment, as is plain from a perusal of liberal wing dissenting opinions—a serious injustice, establishing erroneous precedents across the appellate Court landscape.

The United States Supreme Court did have many opportunities for more than a decade to redress the Constitutional irregularities of State and municipal Governments. Plenty of cases came to the High Court requesting review, but the liberal wing of the High Court did not want that. Those Justices that detested the Heller and McDonald holdings would have much preferred the de facto, or even de jure, erasing of the right of the people to keep and bear arms. And they would have been well on their way to the attainment of that goal if Obama’s nominee, Merrick Garland had acquired a seat on the High Court.

The liberal wing Justices were and are always of one mind on matters impacting the Second Amendment. They certainly didn’t want to strengthen, or reinforce, or extend the rulings of Heller and McDonald as a review of those cases would have done if Chief Justice Roberts and Associate Justice Kennedy were onboard with that. At the time, Justices Scalia, Thomas, and Alito would have done just that But, without the support of Chief Justice Roberts, and Associate Justice Kennedy, that wouldn’t have happened, couldn’t have happened. The Chief Justice and Associate Justice Kennedy most certainly were not prepared to do anything that might strengthen or extend the Heller and McDonald case rulings. It tells a person much about the jurisprudential makeup of the Chief Justice and about Justice Kennedy.

So, Heller and McDonald languished. And, the death of Justice Scalia, and Senate confirmation of Kavanaugh and Gorsuch to seats on the High Court, wouldn’t change the equation. The excruciating painful disembowelment of the two seminal Second Amendment cases was inexorable and inevitable.

 Justices Scalia, Thomas, and Alito were powerless to do anything about it unless they had the votes to prevent this. But, without Chief Justice Roberts and Associate Justice Kennedy—and thereafter, Roberts and Kavanaugh—on their side, they didn’t have the votes. This meant that many Americans, in the interim, were systematically denied the right guaranteed to them in the Second Amendment.

That all changed with the Senate confirmation of Amy Coney Barrett, who, it is safe to say, supports a robust Second Amendment, consistent with the framers’ intent. With Barrett onboard, Roberts and Kavanaugh would have to lend their support to the Conservative wing, or they would be found out for the imposters they were and are. But they could not be caught operating as devoted companions of the liberal wing of the Court who seek to make mincemeat of the Bill of Rights. That would never do, especially for the Chief Justice to be in the minority on any decision, and certainly not on one impacting a fundamental right of the American people.

Now that the Court did at least somewhat strengthen Heller and McDonald, with the Bruen decision, has this rectified the situation for Americans? Have States begun their slow reassessment of the Second Amendment? Have they begun to treat the right of the people to keep and bear arms as a “first-class right” and not a “second-class right”? Perhaps so. Time will tell. Some jurisdictions in fact appear inclined to do so. But, in New York—from where Bruen sprung—not so. Definitely not so! And we will explore why that is in the next several articles on Bruen.

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Copyright © 2022 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.