by Bob Barr
For the first time in nearly a decade, the United States Supreme Court heard oral arguments on a case directly involving the Second Amendment. Not since McDonald v. Chicago in 2010 has the High Court taken up a gun rights case, despite several opportunities to further clarify its landmark decisions in that case and the Heller opinion two years earlier. Conservatives, however, would be well advised to hold off uncorking the champagne bottles.
While the case at hand, New York State Rifle & Pistol Association Inc. v. City of New York, New York, appears ripe for a favorable ruling especially as the Court has shifted to the right since 2010, such an outcome must first overcome several hurdles. Most important is the question of whether the Court will even issue a ruling now that New York has struck the offending law from the books, arguably making the case moot, and thereby sidestepping any strengthening of the McDonald and Heller rulings.
Before the City’s clever move repealing the law, it prohibited licensed gun owners from transporting an unloaded and stowed firearm from the home to ranges or dwellings outside the city limits. Conservatives, however, point to troublesome remnants of the revamped ordinance as reasons for a definitive ruling from the Supreme Court. Also problematic is the fact that the City could reinstate the statute as quickly as it earlier repealed it.
The nuanced and highly specific nature of the case also makes it less likely that the Court, even if it were to issue a ruling, would hand down the broad support for gun rights that Heller and McDonald failed to deliver. Instead, like those two cases, it is just as likely that this most recent case would follow similarly narrow lines and leave for another day the many unanswered questions about restrictive gun control schemes in the post-Heller environment; and, potentially, to a very different Court.
It is this last point that understandably has left conservatives frustrated. Opportunities to clarify its last two landmark but still narrowly tailored Second Amendment decisions, have been many; yet the Court consistently has demurred. This hesitancy prompted Justice Clarence Thomas to take the Court to task for such missed chances. In his 2017 dissent when the majority refused to accept for decision Peruta v. California, a perfect case involving the issue of firearms for self-defense in public, Thomas wrote, “even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively”; adding that he saw “no reason to await another case.”
Nevertheless, the Court waited – as do we all.
The Court’s reticence on definitively affirming the practical effects of the Heller ruling, coupled with its general reluctance to expand further than the immediate merits of any new case, and disappointing leadership from other conservatives on the bench, are reasons why Republicans should not be overly eager to pin their hopes on the Supreme Court this time or in the future to save the Second Amendment.
Instead, conservatives should do what they have been successful at in the past; that is, winning at the ballot box and stopping disastrous gun control proposals at the state and local levels before they ever make it onto the statute books. There is no need to continuously fight costly uphill battles through the court system if Republicans can win legislatively; but this, too, is becoming more difficult.
The GOP’s feckless approach of late in defense of gun rights, has made Republicans vulnerable to devastating electoral losses, as in Virginia last month. Equally debilitating has been the embrace of certain gun control schemes as a way of appeasing anti-gun activists. Support for so-called “universal background checks” and “red flag laws” by Republican Senators like Florida’s Marco Rubio or Pennsylvania’s Pat Toomey, embolden gun control activists and improve chances for enactment of such constitutionally defective measures by state governments.
If Republicans seriously want to keep the Second Amendment from being gutted entirely, they should consider the Supreme Court as a last resort rather than the first and best hope for preserving this vital individual liberty. They instead must grow a backbone with which to proactively defend the Second Amendment in city, county, state and federal elections every cycle; and simultaneously support those men and women in law enforcement who do understand and support the individual right to keep and bear arms, even in the face of adverse publicity that inevitably follows every instance in which criminals abuse firearms.