by Frank Miniter
Friday, March 15, 2019
At times like these, when the battle lines in the fight for freedom are so numerous, it’s worth stepping back a moment for perspective.
The original intent of the U.S. Bill of Rights was to deprive the federal government of certain powers. One of the powers the federal government—and now state and local governments [thanks to the U.S. Supreme Court in McDonald v. Chicago (2010)]—is barred from infringing upon is a citizen’s right to keep and bear (carry) firearms.
Any protected right comes with certain restrictions that are considered to be reasonable—no shouting fire in a crowded theater unless there really is a fire is the most often-cited reasonable restriction on the First Amendment.
The late Justice Antonin Scalia boxed in what is a reasonable restriction on the Second Amendment when he wrote the majority opinion for the Supreme Court in District of Columbia v. Heller (2008). “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all,” wrote Scalia in the decision that found the Second Amendment to indeed be an individual right. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”
Despite those clear words, what is a “reasonable” restriction of the Second Amendment is still a big, complex and pivotal question. It is a question that the U.S. Supreme Court may begin to answer in a recently accepted case called New York State Rifle & Pistol Association Inc. v. City of New York, New York. Right now the high court is accepting “friend-of-the-court” (or amicus curiae) briefs for this case.
Last week Judicial Watch filed a friend-of-the-court brief or this case, which said in part:
“The second amendment should be interpreted consistently with the remainder of the Bill of Rights which ‘concerned restrictions upon federal power’ imposed by means of ‘basic and fundamental rights which the Constitution guaranteed to the people’…. The only lawful process for changing this balance of power between the people and their government is constitutional amendment. Accordingly, the only question is whether [New York City’s] regulations ‘unduly’ burden the right or not. The Court should find that the regulations are an undue burden the people’s Second Amendment rights, which have always included the right to travel with firearms. The second amendment right to self-defense against unlawful aggression by any actor does not disappear when one travels outside the home.”
This coming pivotal decision from the Supreme Court puts the words “ELECTIONS MATTER” in all caps, as the additions of the two justices nominated by President Donald J. Trump—Justice Neil Gorsuch and Justice Brett Kavanaugh—may well balance the scale toward freedom.