September 26, 2017

Peruta: Liberty Denied?

credit: en.wikipedia.org
credit: en.wikipedia.org

By: Mike McDaniel    What sort of madmen are those Czechs anyway? They’re trying to adopt something like the Second Amendment! Via Brietbart:

‘Czech lawmakers have passed legislation in the lower parliament that would see the right to bear firearms enshrined in the country’s constitution in a move directed against tighter regulations from the European Union.

The legislation was passed with 139 deputies agreeing to the amendment to the constitution with only nine deputies voting against. The amendment will now be considered by the Czech Senate where it will require a supermajority of three-fifths of the members in order to pass into law, Die Presse reports.”

“Similar to the U.S. second amendment to the Constitution, which gives Americans the right to keep and bear arms, the Czech legislation reads: ‘Citizens of the Czech Republic have the right to acquire, retain and bear arms and ammunition.’

The amendment also notes that the right is there to ensure the safety of the country, similar to the provision of a ‘well-regulated militia’ in the American amendment.”

“Interior Minister Milan Chovanec said the new legislation was directly aimed at an EU directive from March which sought to prohibit semi-automatic firearms and magazines that hold more than 10 rounds for pistols and 20 rounds for long guns.”

Sound familiar, gentle readers?

“We do not want to disarm our own people at a time when the security situation is constantly worsening,’ Chovanec said. [skip]

Andrej Babis, expected to become the next Czech prime minister, completely rejected mass migration this week commenting: ‘We have to fight for what our ancestors built here. If there will be more Muslims than Belgians in Brussels, that’s their problem. I don’t want that here. They [the EU] won’t be telling us who should live here.”

It’s a good thing Americans don’t have to worry about government infringing on their right to keep and bear arms. After all, the Supreme Court, in Heller (2008) ruled the Second Amendment speaks to an unalienable, fundamental, individual right, and in McDonald (2010), applied that ruling to the states. So it’s settled, right? Right?

Not so much, most particularly in the red states. In around 40 states, citizens have the right, more or less regulated to a privilege, to carry guns openly, concealed, or both. In the others, the right to keep and bear arms exists primarily on paper, at least if one is not a celebrity, politician or wealthy. This brings us to Peruta v. California, a case that has been in the news for years.

The People’s Republic of California does not allow its citizens the open carry of firearms, and of course, restricts firearms ownership in many ways. It does, on paper, allow concealed carry, but essentially leaves the criteria for issuance of permits to the sole discretion of county sheriffs. Few sheriffs issue permits, more issue them to the wealthy, well-connected, celebrities and politicians, but many take the approach of the San Diego County Sheriff, who requires specific “good cause” from any applicant. And what might “good cause” be? It is not defined in law, and in San Diego, and other California counties, there is, for all intents and purposes no such thing. It’s a subterfuge to cover the refusal to recognize the Second Amendment.

Edward Peruta, and others, applied for concealed carry licenses, which were denied for lack of “good cause”–protecting one’s life isn’t good enough in San Diego County–and the case began to wind its way through the courts. A small panel of 9th Circuit judges initially ruled 2 to 1 in favor of Peruta, but an 11-judge panel of the same circuit–the circuit most overturned by the Supreme Court–reversed that ruling. The Ninth Circuit is the nation’s largest, and encompasses, Alaska, Arizona, California, Hawaii, Montana, Idaho, Nevada, Oregon and Washington State.

The case seemed to be a natural for the Supreme Court. In Heller, the court ruled the Second Amendment applied to those weapons in common use for lawful purposes, including self-defense, which then and now refers clearly to semi-automatic handguns, though not exclusively. Heller also spoke to keeping and bearing arms in one’s home and on one’s property, but did not go beyond that into concealed or open carry of arms off one’s property, and therein lies the contemporary problem.

Supporters of the Constitution hoped Peruta, which had a clearly delineated issue directly bearing on the boundaries of the Second Amendment, would be heard by the Supreme Court, which, if it held to Heller and its logical, constitutional implications, would inevitably rule Americans enjoy the right to carry weapons in public as well as on their property. Of what use is a constitutional right that begins and ends at one’s front door? A First Amendment right to worship at home, but nowhere else? A Fourth Amendment right to be secure from unreasonable searches and seizures, but only at one’s place of business and not at home? Unfortunately, even in Heller, the court’s majority noted the Second Amendment has recognized limitations, though it did not go much beyond such glancing recognition.

Unfortunately, in June, 2017, the Supreme Court denied cert in Peruta. They would not hear the case, leaving the 9th Circuit’s decision in place, law in the states of that circuit. Justice Clarence Thomas, with newly appointed Justice Neal Gorsuch concurring, dissented: 

“The Second Amendment to the Constitution guarantees that ‘the right of the people to keep and bear Arm[s] shall not be infringed.’ At issue in this case is whether that guarantee protects the right to carry firearms in public for self-defense. Neither party disputes that the issue is one of national importance or that the courts of appeals have already weighed in extensively. I would therefore grant the petition for a writ of certiorari.

California generally prohibits the average citizen from carrying a firearm in public spaces, either openly or con­cealed. With a few limited exceptions, the State prohibits open carry altogether….It proscribes concealed carry unless a resident obtains a license by showing ‘good cause,’ among other criteria, … and it authorizes counties to set rules for when an applicant has shown good cause….

In the county where petitioners reside, the sheriff has interpreted ‘good cause’ to require an applicant to show that he has a particularized need, substantiated by docu­mentary evidence, to carry a firearm for self-defense. The sheriff’s policy specifies that ‘concern for one’s personal safety’ does not ‘alone’ satisfy this requirement….”

In California, the state grants permission to protect one’s life, and the lives of those they love, only within the boundaries of their property. The lives of virtually all citizens of California, with the exception of the worthies already mentioned, aren’t worth protecting in public. One might argue it’s the job of the government through the police to protect citizens in public, but the government well knows they have no such legal obligation. Not only that, government has no conscience. Government and its functionaries will lose not a moment’s sleep over the death of a citizen denied the means to preserve their life.

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Justices Thomas and Gorsuch understand this. More from their dissent:

“Instead, an applicant must show “a set of circumstances that distinguish the applicant from the mainstream and cause him to be placed in harm’s way.’ ‘[A] typical citizen fearing for his personal safety—by definition—cannot distinguish himself from the mainstream.” As a result, ordinary, ‘law-abiding, responsible citizens,” District of Columbia v. Heller, may not obtain a permit for concealed carry of a firearm in public spaces.”

As one might expect, the 9th Circuit engaged in substantial legal gymnastics to avoid the actual, fundamental issue:

“Had the en banc Ninth Circuit answered the question actually at issue in this case, it likely would have been compelled to reach the opposite result. This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion. As we explained in Heller, to ‘bear arms’ means to ‘wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offen­sive or defensive action in a case of conflict with another person.’… The most natural reading of this definition encom­passes public carry. I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen…. (“To speak of ‘bearing’ arms solely within one’s home not only would conflate ‘bearing’ with ‘keeping,’ in derogation of the [Heller] Court’s holding that the verbs codified distinct rights, but also would be awkward usage given the meaning assigned the terms by the Supreme Court”)”

Progressives have often attacked Justice Thomas for failing to write convoluted, irrational–progressive–decisions. Would that all judges write so clearly, incorporating not only a realistic understanding of the Constitution, but of human nature and the realities of life.

“Finally, the Second Amendment’s core purpose further supports the conclusion that the right to bear arms ex­tends to public carry. The Court in Heller emphasized that ‘self-defense’ is ‘the central component of the [Second Amendment] right itself.’ …This purpose is not limited only to the home, even though the need for self-defense may be ‘most acute’ there…. ‘Self­ defense has to take place wherever the person happens to be,’ and in some circumstances a person may be more vulnerable in a public place than in his own house.”

Self-defense is the foundational basis of the Second Amendment. If individuals have no right to self-defense, the Second Amendment, or anything like it, would be unnecessary, even absurd. Individuals have rights; governments have powers. All sovereign governments have the power to raise, equip and maintain military forces, hence no “right to keep and bear arms” is required for that exercise of power. The Second Amendment, however, is very necessary to keep government from denying the only right that truly matters–the right to preserve one’s life–to its citizens.

“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. Twenty-six States have asked us to resolve the question presented…and the lower courts have fully vetted the issue. At least four other Courts of Ap­peals and three state courts of last resort have decided cases regarding the ability of States to regulate the public carry of firearms. Those decisions (plus the one below) have produced thorough opinions on both sides of the issue….Hence, I do not see much value in waiting for additional courts to weigh in, especially when constitutional rights are at stake. [emphasis mine]

The Court’s decision to deny certiorari in this case re­flects a distressing trend: the treatment of the Second Amendment as a disfavored right. ‘The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions”.’… The Constitution does not rank certain rights above others, and I do not think this Court should impose such a hierarchy by selectively enforcing its pre­ferred rights.The Court has not heard argument in a Second Amendment case in over seven years—since March 2, 2010, in McDonald v. Chicago… Since that time, we have heard argument in, for example, roughly 35 cases where the question presented turned on the meaning of the First Amendment and 25 cases that turned on the meaning of the Fourth Amendment. This discrepancy is inexcusable, especially given how much less developed our jurispru­dence is with respect to the Second Amendment as com­pared to the First and Fourth Amendments.”

There may be legitimate reasons for waiting, but I’ll deal with this after Justice Thomas’ last point:

“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem anti­quated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.”

“I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it.” It must be remembered that the Supreme Court’s inaction in this case is not a decision. It establishes no precedent. The Court accepts only a tiny portion of all cases submitted to it each year, tending to focus only on cases dealing with substantial constitutional issues, cases where the lower courts are substantially at odds, which is the case with Peruta, and many similar laws elsewhere in the nation.

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Why was the case denied cert? Perhaps several of the justices thought it best to wait for a more solid conservative majority. Consider, gentle readers, what this means. The Supreme Court–no court–should base its deliberations on politics, but on the Constitution and the law involved. A “conservative majority” does not mean judges that will rule on conservative principles regardless of the Constitution on the law, but the opposite. The Constitution is supreme, and the law secondary. The progressives of the Court, and of lower courts, often–not always–ignore the Constitution and the law, or write law, to obtain desired progressive results.

It this were so, the appointment of Judge Gorsuch would surely have given such justices hope of restoring a far more constitutionally based deliberation process to the court, which might provide a more far-ranging ruling in a case like Peruta. As is, a bare constitutional majority might have been able to do no more than rule states must allow citizens some method of bearing arms outside their homes. A state like California could then–and it certainly would–so restrict such carry as to make it farce, requiring decades and tens of millions in legal wrangling to obtain another miniscule, incremental step toward liberty in the Second Amendment.

Are some justices seeking to protect what Heller and McDonald have accomplished? They certainly know more than we do about the motivations and tendencies of their colleagues. Or are they merely trying to avoid the horrific political fallout any such ruling would provoke? Are they merely kicking this particular can down the road? We can be certain, however–if you doubt this, read the dissents in Heller and McDonald (here  and here) that at least four of the contemporary justices would overturn Heller if they could, or at the least, render it a right on paper only, having no application in the lives of Americans. We can also be certain powerful progressive political forces will never stop seeking to disarm the honest, patriotic and law-abiding by any means necessary and possible.

The Constitution and the rule of law it represents are a mighty impediment to their political desires, and to all would be tyrants, which is rather the point of any Second Amendment argument.

They really hate to admit that too.

Mike’s Home blog is Stately McDaniel Manor.