By Theresa Inacker
Are you suffering from a post-concussive shock after the Supreme Court declined to hear the Texas election challenge case against Pennsylvania, Michigan, Wisconsin and Georgia? For many of the case’s supporters, it felt like a whack on the side of the head with a 2×4. What you are actually suffering from is post-Constitutional syndrome. Second Amendment rights activists and gun owners have been suffering from this disillusioning malady for more than a decade.
All signs point to the new reality that we have entered a post-Constitution era in the United States. Second Amendment advocates have been sounding the alarm bell on this for years, ever since the landmark Heller decision in 2008, and McDonald in 2010. Second Amendment rights activists have been petitioning the Court over violations of their basic human rights.
Supporters of the right to keep and bear arms have been left consistently without relief, scratching their heads, wondering whatever happened to petitioning the government for redress. Who do you turn to if the Court refuses to act, one way or another? Is it even one of the purposes of the SCOTUS to resolve important disputes any more? Yes. In fact, it’s arguably the Court’s most important function.
Second Amendment advocates have submitted countless petitions in the last several years, writs of certiorari, the primary method for a case to reach the High Court. Yet time and again, the Justices have declined to hear our cases even though citizens’ freedom, safety and lives are at stake.
While the Court agreed to deal with the NYSRPA v. NYC case, the Court took the easy way out, claiming the matter moot, ignoring the glaring civil rights violations and failing to address the substantive issues. Additionally, New Jersey firearms owners have filed litigation for the state’s failure to issue carry permits.
As you may recall, Justice Clarence Thomas issued a scathing dissent earlier this year railing against the majority’s failure to take up Rogers v. Grewal. In the same session, the Court declined to hear two other New Jersey carry cases, Cheeseman and Ciolek.
In the Rogers dissent, Justice Thomas lamented:
“One of this Court’s primary functions is to resolve ‘important matter[s]’ on which the courts of appeals are ‘in conflict.’” Gee v. Planned Parenthood of Gulf Coast, Inc., 586 U. S. ___, ___ (2018) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 1) (quoting this Court’s Rule 10(a)). The question whether a State can effectively ban most citizens from exercising their fundamental right surely qualifies as such a matter. We should settle the conflict among the lower courts so that the fundamental protections set forth in our Constitution are applied equally to all citizens. This case gives us an opportunity to provide lower courts with much-needed guidance, ensure adherence to our precedents, and resolve a Circuit split. Each of these reasons is independently sufficient to grant certiorari. In combination, they unequivocally demonstrate that this case warrants our review. Rather than prolonging our decade-long failure to protect the Second Amendment, I would grant this petition.”
Justice Thomas is correct that one of the Court’s primary functions is to resolve matters of great importance. If the Court fails to act, where do We The People go to seek help with our disputes?
The disdain for our nation’s governing document is no secret and has been made plain. Anti-rights types, the gun grabbers, act as though the Constitution doesn’t exist. Their operating principle seems to be, ignore it and it will go away.
The Constitution is only as good as the entities that are willing to enforce it. The Court has signaled, particularly to Second Amendment supporters, that it will not enforce the Constitution, pushing us into the current post-constitutional era.
But here is the good news. Our rights to self-defense and to keep and bear arms pre-existed the Constitution as it has been well-established by history, tradition and philosophy. The Second Amendment merely codified that pre-existing right, granted by God and/or by nature and existing in every human.
Therefore, while anti-individual rights types can ignore or may even eradicate the Second Amendment, it will never eradicate our pre-existing human right to armed self defense.
The Court’s failure to act in these disputes has been a great disappointment. The Court seems content with the current situation, with ongoing conflicts between various District Courts that permit the wholesale ravaging of the Second Amendment, even failing to affirm that the right to keep and bear arms applies outside the home.
Litigants aren’t just looking for a pat on the back. Actual people are suffering real violations of their civil and human rights in states like New Jersey. Our lives are at risk, unable to lawfully carry a firearm outside the home. Individuals face felony charges and mandatory jail time for carrying their own, lawful firearms outside the home. This puts our lives at risk. Death is a very real possibility with no means of self-defense, and the Court apparently couldn’t care any less.
The Constitution is only as good as its application and enforcement. Due to recent political and electoral events, more of the general citizenry has become aware of this fact. Much to the dismay of gun-grabbers and other anti-individual rights types, our Second Amendment rights pre-exist the Constitution and will continue to exist in a post-Constitution world. So long as the will of We The People is to be free, these rights will be defended at all costs.
Theresa Inacker, an attorney and Second Amendment advocate, a member of the US Supreme Court bar, the New Jersey delegate to The DC Project, and a Board Trustee and Communications Director for The Coalition of New Jersey Firearm Owners.