NEW YORK TIMES UNLEASHES ATTACK DOGS IN OP-ED ON EVE OF ORAL ARGUMENT BEFORE THE SUPREME COURT IN BRUEN

The U.S. Supreme Court hears oral argument today on the  Second Amendment case NYSRPA vs. Bruen (previously captioned NYSRPA vs. Corlett).

This is the first major case to come before the High Court after Chief Justice Roberts and Associate Justice Brett Kavanaugh, joining the Liberal wing of the Court, punted on last year’s New York City Gun Transport case. Let’s hope the Chief Justice and Associate Justice Kavanaugh don’t get cold feet this time.

But there are enough Anti-Second Amendment fanatics, including, unfortunately, jurists and attorneys, waiting in the wings, to castigate the Justices if they should—horror of horrors—actually strike down unconstitutional laws.

One can perhaps understand the “walking dead” among the living who pay too much attention to the nonsense spouted by jackasses in the Government, in the Press, in social media, and in Hollywood—allowing others to do their thinking for them. And the message is always the same:

“Surrender your firearms and peace will rain down upon you from the heavens.” And “the walking dead” nod their heads in mindless, senseless bovine agreement.

At one time the fiction might have been somewhat believable, even though patently untrue. That was in the day when communities actually had well-funded police departments to provide at least a modicum of security. Now, however, police departments in major cities are underfunded, defunded, and emasculated, or are on the verge of extinction.

One is left to ask, plaintively: “who will protect me if there are no police around and I’m not permitted a handgun to protect myself?” And, one is left befuddled at the reply given him from the vacant-eyed cultists: “That’s your white privilege talking.”

But, when some jurists and attorneys claim a person’s right to defend him or herself with a firearm must stop at the doorstep of one’s house, such an assertion is untenable and unconscionable.

Yet, that is what the public gets.

In an Op-Ed titled, “Prominent Conservatives Back Letting States Limit Guns in Public,” published in The New York Times, on November 2, 2021, one day before the oral hearing in Bruen, J. Michael Luttig, a former U.S. Court of Appeals Judge, and Richard D. Bernstein, an appellate lawyer, make clear their disdain for “the right of the people to keep and bear arms.”

They demonstrate their abhorrence of the unfettered Constitutional Right of Americans “to carry loaded concealed weapons in public and in public places, wherever and whenever they believe they might need their guns for self-defense.”

They assert, “The announcement of such an absolute and unfettered right would be shocking and disquieting to most Americans. . . .”

The appropriate, if curt, reply to this ridiculous remark is, “so what!”

Since when is a decision on a fundamental, natural law Right to be treated like a Beauty Pageant—as a matter for popular acclaim?

These two ostensible legal experts, continue:

“The Supreme Court is not constitutionally empowered to make these decisions, and it is ill-suited to make them. For the justices to begin deciding for the people exactly where and when a person has a right to carry a handgun in public would be to establish the court as essentially a National Review Board for Public-Carry Regulations, precisely the kind of constitutional commandeering of the democratic process that conservatives and conservative jurists have long lamented in other areas of the law, such as abortion. It would be hypocritical for this conservative court to assume what essentially would be a legislative oversight role over public-carry rights, when conservatives on and off the court have for almost 50 years roundly criticized the court for assuming that same role over abortion rights.”

Former Judge Luttig and Attorney Bernstein simply construct a strawman to unceremoniously knockdown.

The U.S. Supreme Court isn’t operating as a “National Review Board for Public-Carry Regulations,” when deciding matters of Constitutional law. That IS precisely their Article 3 duty.

Apparently, these learned gentlemen have forgotten what they came across during their first-year Constitutional law class: Marbury vs. Madison, 5 U.S. 137 (1803).

“It is emphatically the province and duty of the judicial department to say what the law is.”

This function and the sacred obligation of the Judiciary do not fall to Congress. It doesn’t fall to the U.S. President. It doesn’t fall to State and Local Governments. And it sure as hell doesn’t fall to an uninformed, angry mob.

It is the duty solely of the U.S. Supreme Court, to interpret the law—to say what the law is.

Yet, Luttig and Bernstein would dare deny the Court its Constitutional function. They don’t just suggest this. They blurt it out,

“Conservatives, textualists and originalists believe — or should — that the Second Amendment ought not be interpreted to take from the people and their legislatures the historical and traditional authority they have had for centuries to decide where handguns may be carried in public and in public places.”

They continue,

“Historically and traditionally, legislatures have restricted the public carry of guns, from medieval England to colonial times, through the founding and to the present day. In fact, many of those early laws were more draconian than our own, banning the carry of guns in public places generally, without offering any exceptions like those New York provides for people who can demonstrate an actual need to defend themselves. Those restrictions extended far beyond public locations with a large and continuous armed police presence, such as government buildings and courthouses, to almost any public place — fairs, markets and indeed wherever a person would ‘go armed.’”

Reliance on historical anecdote—and Luttig and Bernstein do not offer support for any of this—has limited prudential value at best. That is why originalists do not place much stock in it, and should not.

In the first instance and in the final analysis, one should go to the written language of the law:

The Second Amendment says,

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

Where in the language of the Second Amendment is there any statement of limitation on the exercise of the Right?

The danger of overbearing Government action is most acute where fundamental rights are involved. Governments must act circumspectly. They rarely do. Government justification for infringing a fundamental right on the pretext of pragmatic expediency must be scrutinized by the Courts.

New York gun legislation is a case study of heavy-handed action by the Government. The Second Amendment Right is converted into mere privilege and one that the Government rarely grants to the American citizen.

Luttig and Bernstein apparently aren’t even aware that, in blindly defending the New York City handgun licensing scheme—requiring the applicant to show actual need before obtaining a concealed handgun license—they fail to see the inherent absurdity of it.

Why should a person be forced to proffer a reason to a Government official that one’s life is worth defending with the best means available for doing so—a handgun? It presupposes one’s life isn’t really important. And, the entire exercise comes down to an arbitrary, perfunctory, and often futile and expensive ordeal for the citizen; one inviting corruption and unfair dealing of which the NYPD Licensing Division is notorious.

Lastly, Luttig and Bernstein have the audacity to give advice to Associate Justice Amy Coney Barrett, attempting to thrust her own words back upon her. They assert,

“Two years ago, then-Judge Amy Coney Barrett called English and founding era statutes ‘the best historical support for a legislative power’ to restrict firearms.”

The case Luttig and Bernstein refer to is Kanter vs. Barr, 919 F.3d 437 (7th Cir. 2019).

But, what Justice Barrett said, in her dissenting opinion, apropos of that passage, in full, is that:

“The best historical support for a legislative power to permanently dispossess all felons would be founding-era laws explicitly imposing—or explicitly authorizing the legislature to impose—such a ban. But at least thus far, scholars have not been able to identify any such laws. The only evidence coming remotely close lies in proposals made in the New Hampshire, Massachusetts, and Pennsylvania ratifying conventions.”

Justice Barrett wasn’t advocating for use of historical support for legislative power to curb the exercise of one’s Second Amendment right. On the contrary, she was claiming the jurist should be wary of relying on it.

In the case before the Seventh Circuit, Judge Barrett argued for the reinstatement of Plaintiff Kanter’s right to own and possess a firearm; not to dispossess him of it. She concluded her dissent, saying,

“Kanter is a first-time, non-violent offender with no history of violence, firearm misuses, or subsequent convictions,’ and he is ‘employed, married, and does not use illicit drugs, all of which correspond  with lower rates of recidivism.’ Absent evidence that Kanter would pose a risk to the public safety if he possessed a gun, the governments cannot permanently deprive him of his right to keep and bear arms.”

Luttig and Bernstein should have given proper context to Justice Barrett’s dissenting opinion in Kanter, or have shown her the courtesy to refrain from quoting her at all.

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Copyright © 2021 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.