By John Velleco
This article concludes a three-part series explaining the courts’ shabby treatment of the Second Amendment since Heller and McDonald were decided more than a decade ago. The first article recounted the U.S. Supreme Court’s abdication of its duty to protect Second Amendment rights, most recently by refusing to decide New York State Rifle & Pistol Ass’n. v. New York City on the merits in April, and then refusing to grant review of 10 additional anti-gun court decisions in June.
The second article exposed the formulation of atextual, “judge empowering” interest balancing tests which most federal courts have been using to avoid basing their rulings on the “text, history and tradition” of the Second Amendment.
This third article will look forward, and propose a plan to protect gun rights in the courts in the apparent absence of a majority of justices on the U.S. Supreme Court willing to protect the Court’s Heller and McDonald decisions. This article urges that pro-gun forces agree on — and act based on — five key strategies.
1: Litigate Gun Rights Cases Under State Constitutions in State Courts
Since the federal courts have disappointed us, it is time to focus additional attention on challenging gun cases based on state constitutional provisions in state courts. Forty-four state constitutions provide at least some level of protection to the right to keep and bear arms. Many of these provisions either parallel or at least resemble the Second Amendment to various degrees, some using language that seems a bit stronger, and others a bit weaker.
Only six states do not have any express state constitutional protections for gun rights (California, Iowa, Maryland, Minnesota, New Jersey, and New York). While it is probably not possible to amend the state constitution in some of the most liberal states in the nation, pro-gun voters should continue to support such efforts.
Indeed, great efforts were made by gun owners in Iowa to amend the Iowa Constitution to include protection for firearms, before a bureaucratic snafu in 2019 prevented the issue from being considered by the voters for the second time, as required to become part of the state Constitution.
In crafting new or improved state constitutional protections, caution should be used in employing language such as that added in 2014 to the Alabama constitution (with 72 percent of the vote). The Alabama constitution now provides that every citizen has a “fundamental right” to bear arms and that any restriction on this right would be subject to “strict scrutiny.”
The second article in this series explained how judges invented empty terms like “fundamental rights” and “strict scrutiny” not to protect individual rights — but to allow them to be bypassed in favor of judges’ policy preferences.
Bringing challenges to state laws in state courts presents a perfect way for national gun groups to join with state gun groups.
When “strict scrutiny” is used, it requires judges to assess whether a law is “narrowly tailored” and whether it employs the “least restrictive means” to protect the public — but those too are phrases without historic or objective meaning. All too many judges believe they were put on the bench to rule over us, not just to rule on cases and controversies.
These judges fabricate legal-sounding methods to evade any constitutional constraint we can write, so it is our job to avoid terminology, such as “fundamental rights” and “strict scrutiny,” that makes it easier for them to evade the text.
For those states with constitutional protections for guns, the “text, history, and tradition” of those state provisions should be explored. Those wanting to challenge anti-gun state laws should consider bringing those challenges in state courts, alleging violations of state constitutional provisions.
Generally, the decision of the highest court of a state on the meaning of state constitutional provisions is final, and not reviewable by the U.S. Supreme Court. Thus, lawyers who want to have a U.S. Supreme Court argument on their resume might not prefer that option. However, many states have seen few gun challenges based on state constitutional provisions and there is a much greater chance of avoiding the phony “two-step” test adopted by almost all of the federal circuit courts (discussed in Part Two of this series).
Bringing challenges to state laws in state courts also presents a perfect way for national gun groups to join with state gun groups. For example, when Mayor Bloomberg outright bought both the Virginia General Assembly and the three state-wide elected officials of the Commonwealth, Virginia turned from pro-gun to anti-gun in a matter of months. Gun Owners of America joined with Virginia Citizens Defense League to challenge Governor Northam’s closing of indoor gun ranges allegedly for fear of spreading COVID-19. This challenge was brought in state court and was based exclusively on the state constitution — and it succeeded.
More recently GOA and VCDL again joined to challenge in state court two of these terrible new Virginia state laws — the “one handgun a month” law, and the “universal background check” law. Again, these cases were brought based on violation of the Virginia Constitution only and are now pending in Virginia state courts.
Article I, Section 13 of the Virginia Constitution is very similar to the Second Amendment, but in some ways it seems even stronger. More importantly, though, Virginia has never adopted the federal courts’ “two-step” test, and the Virginia Supreme Court has decided only two significant decisions on gun rights. We shall see what happens in those cases, but it is certainly better than being in federal court, where judges on the Fourth Circuit haven’t yet to come across a Second Amendment infringement that they weren’t able to justify.
2: Litigate Federal Gun Rights Cases in Favorable District Courts
For decades, those on the anti-gun Left have become experts at picking the courts – and the judges – that they believe will give them a victory. It is no coincidence that when the Left wants to challenge President Trump on matters of immigration or social issues, it files suit in San Francisco, Honolulu, New York City, and similar courts where it would be hard to lose even if they tried. Likewise, particularly when right to keep and bear arms cases are brought in federal courts, great care should be given to where those cases are brought.
For example, when California enacted a ban on standard capacity magazines (improperly called large capacity magazines), Senior District Judge Roger Benitez of the Southern District of California (San Diego) granted a preliminary injunction to allow current owners of magazines to keep them. Judge Benitez explained:
Bad political ideas cannot be stopped by criminalizing bad political speech. Crime waves cannot be broken with warrantless searches and unreasonable seizures. Neither can the government response to a few mad men with guns and ammunition be a law that turns millions of responsible, law-abiding people trying to protect themselves into criminals. Yet, this is the effect of California’s large-capacity magazine law. [Duncan v. Becerra, 366 F.Supp.3d 1131 (S.D.Cal. 2019).]
And when California required background checks for people buying ammunition, in another challenge, Judge Benitez ruled:
The experiment has been tried. The casualties have been counted. California’s new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured. [Rhode v. Becerra, 2020 U.S. Dist. LEXIS 71893 *2 (S.D.Cal. 2020).]
Now, that’s a judge who “gets it.”
3: Litigate in Federal Circuits with Majorities of Republican-Appointed Judges
When you litigate in federal court, you will appear before three types of judges: (i) almost every Democrat-appointed judge is anti-gun and will rule that way; (ii) almost every Trump appointed Judge will respect the Second Amendment, even over his own preferences; and (iii) if you are before a Reagan/GHW Bush/GW Bush judge, you have about a 60-40 chance of a favorable outcome. Therefore, we need to focus litigation in circuits that President Trump has turned majority Republican.
The U.S. Senate just confirmed the 200th federal court judge nominated by President Trump, 53 of whom are serving on U.S. Courts of Appeals. They are as follows: First Circuit – 0 judges; Second Circuit – 5 judges; Third Circuit – 4 judges; Fourth Circuit – 3 judges; Fifth Circuit – 6 judges; Sixth Circuit – 6 judges; Seventh Circuit – 4 judges; Eighth Circuit – 4 judges; Ninth Circuit – 10 judges; Tenth Circuit – 2 judges; Eleventh Circuit – 6 judges; D.C. Circuit – 3 judges.
All Democrats are Democrats, but only half of Republicans are Republicans. That rule often holds true with judges.
With these judges added, seven of the 12 circuits now have a majority of judges appointed by Republican Presidents. This includes the Second, Third, Fifth, Sixth, Seventh, Eighth, and Eleventh Circuits. Even in the famously liberal Ninth Circuit, Trump has had 10 appointees confirmed — more than one-third of the active judges — compared to only seven appointed by President Obama over eight years. Amazing. Elections do indeed have consequences.
Of course, while litigating in a Republican-majority circuit is no guarantee of success, litigating in a circuit dominated by Democrat-appointed judges almost certainly will result in an anti-gun ruling. (As Dan Bongino says about Congress— all Democrats are Democrats, but only half of Republicans are Republicans. That rule often holds true with judges.)
Democrat-appointed judges always seem to prefer the “judge-empowering interest balancing test” proposed by dissenting Justice Breyer, to the “history, text and tradition” test in the Heller majority opinion written by Justice Scalia.
4: Skeptical Evaluation of All Future Supreme Court Nominees
The U.S. Supreme Court is aging. Justice Ginsburg is 87 years old, and Justice Breyer is 81 years old. Both no doubt want to hang on until a Democrat is in the White House, but if Trump is re-elected, both of those seats may open up. Fortunately, Justice Thomas is 72, and Justice Alito is 70, and both appear to be in good health. The recent rumors that circulated in Washington about one or both of these two justices retiring appear to be completely bogus. The rest of the Justices are in their 50’s and 60’s and could be expected to serve for many years longer.
With future vacancies, eternal vigilance is again the price of liberty. In the past, gun groups, including GOA, have focused attention on researching nominees, and opposing the bad ones and supporting the good ones. For example, GOA attorney Bill Olson testified in person before the Senate Judiciary Committee to expose Justice Kagan’s anti-gun record while she was a Law Clerk for Justice Thurgood Marshall.
GOA published an article in the American Thinker exposing a potentially troubling firearms-related vote by Justice Gorsuch when he was being considered. This year, GOA has decided to ramp up its efforts in this area before the November election to assemble, review, and act based on the gun views of 25 potential Trump nominees to the U.S. Supreme Court.
5: Reject Judicial Supremacy
Even if we gun owners do everything right, we still could lose, whether by political betrayal of Republican-appointed judges and Justices, or constitutional sabotage by Democrat-appointed judges and Justices, who seem to fashion themselves as a left-behind guerilla army tasked with impeding the right to keep and bear arms at all costs.
At that point, we will need to decide — does the Constitution protect what the Framers said it does, or what modern judges say it protects? Gun owners need to agree and resolve that it is the Constitution that rules, not lawyers wearing robes.
As Justice Felix Frankfurter said in Graves v. New York (1939), “the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”
Even the Supreme Court has often acted as if it is above the Constitution. There was even one case in which the U.S. Supreme Court declared that its opinion was superior to the Constitution. In Cooper v. Aaron (1958), the court arrogantly stated, “that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’”
Unfortunately, in many other cases, the Supreme Court has similarly acted as if its decisions control the Constitution rather than the other way around.
At some point, the Courts could so corrupt the Second Amendment that Americans will need to decide how to respond to a lawless High Court. Others in the past have faced lawless governments, and we need to learn from how they handled the problem.
To that end, Gun Owners of America has advocated for Second Amendment Sanctuary Ordinances (SASO) across the country, in which counties and localities resolve not to enforce unconstitutional state and federal gun control laws. Although leftists seem to turn to “mob rule,” Constitutionalist look to faithful local elected officials to protect them from lawless state officials, and look to faithful state officials to protect them from lawless federal officials. Yet few elected officials even know that this responsibility to protect their constituents comes with the job.
Wrapping up these three articles, we have seen that gun owners cannot rely on the U.S. Supreme Court as presently constituted. And we cannot rely on large numbers of the judges in the lower federal courts who are all but openly hostile to the Second Amendment. But there are still strategies which can improve our odds of defending our liberties, such as litigating before state courts and Trump-appointed judges.
In law, the protections afforded by the Second Amendment are classified as “self-executing” in that they do not require enactment of legislation to give them effect. But as a practical matter, the Second Amendment does not automatically strike down unconstitutional laws.
Getting unconstitutional gun laws declared unconstitutional is laborious work which has required and will continue to require the unified actions of gun owners throughout America. Our generation must not be the one that allows these rights to be stolen away from us.
John Velleco is the Executive Vice President of Gun Owners of America, a grassroots lobbying organization with more than two million members and supporters nationwide.