“The right of the people to keep and bear arms, shall not be infringed.”
So says the independent, active clause of the Second Amendment. The Heller decision, handed down in 2008, was in large part about the meaning of those words, particularly “right,” “the people,” “keep and bear,” “arms,” and “shall not be infringed.” The majority decision affirmed long-standing legal principle and common sense: words mean exactly what the dictionary says they mean and what reasonable people understand them to mean. Individual citizens have a fundamental right to keep and carry the kinds of arms in common and usual use. The decision is much more fuzzy on to what degree that right may be infringed, and only slightly less fuzzy on which arms may be regulated or banned . . .
Two Supreme Court decisions handed down last week, however, may very well threaten to reduce the Second Amendment to a right in name only. They are King v. Burwell–the Obamacare case–and Obergefell v. Hodges, the gay marriage case.
In King v. Burwell, a 6-3 majority of the Court held that federal subsidies may be paid to individuals regardless of the explicit language of the Affordable Care Act (ACA), which says that subsidies are available only to those that purchase insurance on exchanges “established by the state.” In order to reach this conclusion, the majority–Chief Justice John Roberts wrote the opinion–had to hold that “state” doesn’t merely mean an individual state as actually defined by the ACA, but also means “federal government” and/or “Secretary of Health And Human Services (Burwell).” In other words, “State” also means its opposite.
This case should have been a straightforward exercise in statutory interpretation; what does “state” mean? Unfortunately, the majority chose to ignore the common, usual, dictionary meaning of the word, and substituted instead an analysis based on what they believed the legislature intended rather than what they specifically wrote multiple times in the ACA. Justice Roberts wrote that the Congress–actually, all Democrats; not a single Republican voted for the ACA–intended to improve health care, so it was the Court’s job to save the ACA. This ignores the fact that if the Court stuck to its proper role, the ACA would simply have been returned to Congress who could have clarified and/or repaired any issue to its satisfaction. This is how our representative republic was designed to work.
Justice Scalia, who wrote the minority dissent, noted:
“Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.”
Justice Scalia went on to observe that the decision broke with the Court’s precedence, principles of legal analysis, and the Constitution.
In Obergefell v. Hodges, a 5-4 majority, despite the fact the Constitution is silent on the topic, created a fundamental right to gay marriage and held that the 14th Amendment requires the states to issue marriage licenses and to honor the licenses of those issued by all the states. It took the second of two decisions by the court–McDonald, in 2010–to acknowledge that the Second Amendment, a fundamental right actually expressed in the Constitution, applies to the states.
Amazingly, Chief Justice Roberts, who wrote one of the four separate dissents, noted:
“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. … But do not celebrate the Constitution. It had nothing to do with it.”
Justice Roberts went on to argue that the justification for the decision was invented, and its basis was nowhere to be found in the Constitution.
What does this have to do with the Second Amendment? More than one might imagine.
The next President of the United States may have the opportunity to appoint as many as three Supreme Court justices. For the moment, Heller and McDonald hang on the five/four majority of the court, which held that words do have specific and commonly understood meanings. The four judges of the liberal block can absolutely be counted upon to vote against the Constitution where the Second Amendment is concerned. Former federal prosecutor Andrew McCarthy observed:
“There was never a shadow of a doubt. In the plethora of opinions generated by these three cases, there is not a single one authored by Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, or Sonia Sotomayor. There was no need. They are the Left’s voting bloc. There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation…
And it is not so much that they move in lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.
It is simply accepted that these justices are not there to judge. They are there to vote. They get to the desired outcome the same way disparate-impact voodoo always manages to get to discrimination: Start at the end and work backwards. Guiding precedents are for the quaint business of administering justice. In the social justice business, the road never before traveled will do if one less traveled is unavailable.”
If the balance on the court changes, the Second Amendment will be rendered a dead letter. Remember that unlike Obergefell v. Hodges, where the progressive majority resolved the major issues immediately, it took them two years to apply the Second Amendment–an express, not an implied, right–to the states.
Still unresolved are exactly which kinds of weapons one may keep and bear and under which circumstances. Handguns seem safe, but what of the most common, usual and popular rifle, the AR-15 family? Unresolved too is the scope of infringement. For the moment, it seems that states must allow either some form of concealed carry, or open carry, but even that is not certain, and all manner of infringements may be concocted regarding when and where such carrying may occur. Even now, California and Chicago actively resist observing the Constitution and New York City remains essentially a gun free zone, at least for law-abiding citizens.
The Chief Justice of the Supreme Court has now demonstrated that he is willing to abandon the court’s role in interpreting the language and meaning of statutes in favor of doing whatever is necessary to uphold progressive social justice goals. Yet simultaneously, he writes a dissenting opinion in Obergefell v. Hodges criticizing the majority for doing just that. Some legal observers have reasonably said that Roberts’ opinions in those cases appear to have been written by two different people, which is what one might expect when a Supreme Court Justice does not apply the law according to precedent and proper legal analysis. Who knows what “right,” “people,” “keep and bear” and “arms,” might be interpreted to mean? If King v. Burwell is any indication, their opposite.
Even if the ideological balance remains the same, the Court can no longer be expected to adhere even to its own prior decisions or methods of arriving at them. Maintaining, even increasing the ideological balance on the Court to justices dedicated to the rule of law rather than social justice outcomes, has become more important than ever.
If we wish to preserve the liberty the Second Amendment makes possible, the 2016 presidential election may well be the most consequential of our lifetime, made even more so by two seemingly unrelated Supreme Court decisions handed down in June of 2015.
Justice Roberts, and Justice Kennedy–the perennial “swing vote” on the Court–cannot be trusted to continue to interpret the Second Amendment by stare decisis and rational legal analysis. The four-person progressive bloc never could. As Octavius said in Julius Caesar (Act 4, scene 1):
“For we are at the stake
And bayed about with many enemies.
And some that smile have in their hearts, I fear,
Millions of mischiefs.”