As we reported yesterday, the full Ninth Circuit handed down a decision on the right to keep and bear arms, reaffirming the obtuse and racist gun control regime in California that arbitrarily gives the wealthy and politically connected, enjoyment of the privilege of being protected by firearms (along with those who happen to live in majority white counties. The decision is worth studying for people interested in the topic for two reasons.
First, in their decision, the Ninth Circuit goes through an extensive recounting of legal history related to the right to keep and bear arms and gun control. Or, in some cases, sword control, since the Ninth Circuit goes all the way back to medieval England:
In 1299, Edward I directed the sheriffs of Safford and Shalop to prohibit anyone from “going armed within the realm without the king’s special licence.”
It’s an interesting review of laws intended to disarm the population outright, or at least protect the option of those in power to disarm the population. It’s also (unintentionally, no doubt) funny how it blithely ignores the context behind those laws. Why did the King of England want to disarm his subjects? Why were antebellum Tennessee, Georgia, Arkansas, and Louisiana so touchy about weapons in the hands of ordinary folks? Was there some sort of threat of revolt at hand? And by whom?
The court also (in my opinion, rather wrongly) becomes so enamored of legal history that it forgets what it’s been charged with doing. Citing a litany of examples of how slave states in the old South thought it was okay to disarm their populations is all well and good. But they never really establish why the interpretation of slave state legislatures and slave state courts about slave state constitutional provisions relating to the carriage of firearms should apply to our interpretation of the original meaning of the Second Amendment today.
The whole purpose of federalism was to allow the several states the opportunity to experiment — to be a laboratories of different policies, if you will. The feds were forbidden from infringing on the right to keep and bear arms by the Second Amendment, but — and this is the key — the Second Amendment was not incorporated to apply against the several states until the McDonald decision in 2010.
For that reason, an examination of state statutes and constitutions relating to the right to keep and bear arms between 1789 and 2010 is an interesting antiquarian project. But it’s not something that sheds much light on the meaning of the Second Amendment which, as originally conceived, was intended to apply only to the federal government (which meant that it was probably intended to be more expansive, not less) and which had been ratified on the heels of a brutal war against the British which would never have been won if the American people had been successfully disarmed.
Granted, the Ninth Circuit probably put such a premium on legal history because Justice Scalia did in Heller, although the late Justice did a better job of threading that history through the rather narrow prism afforded by the fact that the Second Amendment only applied to the feds, not the states, until 2010. But that brings us to the next point…
The second reason why this case is interesting is — not to sound pessimistic — because this may be something of a turning point on firearms issues in Courts.
The whole decision smells like it was written not just by someone who wanted to adjudicate the case at bar, but to put an end to the momentum that the right to keep and bear arms has enjoyed in federal courts since Heller. In this case, I think they may have succeeded. The decision is a veritable go-to repository, not for legal arguments, but for political ones made in the era of social media. Want to argue that legal history is on the side of the disarmament folks? Just copy and past the history out of the decision and into your Facebook page. Does it mean that, legally, they got it right? No, of course not. But in the era of social media persuasion, such things don’t really matter.
It also provides an easy citation for members of the judiciary — from local magistrates all the way up to the Supreme Court — who, all else being equal, would rather not be out in front defending the Bill of Rights. Don’t want to strike down a law that infringes on the right to carry a firearm for personal protection? Just cite to Peruta and copy and paste some of the history into your opinion. See? It turns out that the history is muddled, therefore no rights for you! After all, judges are human, and humans tend to make their decisions based on emotion then rationalize it later.
There may be, however, a silver lining to all of this. At the end of the day, the right to keep and bear arms doesn’t really rely on words written in the Constitution. It doesn’t rely on the thoughts and feelings of James Madison, Thomas Jefferson, or Ethan Allen. It doesn’t rely on the decisions made by slave state judges or ancient monarchs who claimed power by the divine right of kings. What it relies upon is the willingness of the people who claim the right to defend it.
If the only positive reason we have to argue in favor of concealed carry is because of some words written 250 years ago, I suggest that the argument is already lost.
I don’t think the argument is lost. There are plenty of reasons why ordinary law-abiding citizens might want — might need — to carry a firearm, and it has everything to do with the fact that it’s a dangerous world, that people can be mean, arbitrary, capricious and violent, and that shit, as they say, happens when you’re in the wrong place at the wrong time. There’s also a lot to be said for the fact that as a general principle, people who aren’t actually hurting anyone else ought to be able to go about their business and their lives unharmed, even if they make choices that we find aesthetically discomforting. And, for that matter, a government or force that could disarm the people of America would, by its very nature, be a fascist state that would kill anyone that got in its way.
Those are the real arguments for the right to keep and bear arms and by extention, the right to carry a concealed firearm by law-abiding citizens. Dress ’em up however you want, but those are the arguments we need to press on to our fellow citizens. If we do it well, the opinion of the Ninth Circuit will be irrelevant, because the people will ultimately carry the day. If we fail at it, we could win every court case, and ultimately lose because we lost the people. And at that point, it just takes one push to bring everything down. Generally, constitutional amendments get ratified in ten years or so from start to finish.
So what are you waiting for? Get out there. There’s a nation to win.
DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.