The Federalist: SCOTUS Gun Case Denials Signal Conservative Justices Don’t Trust Roberts With The Second Amendment

Larry Keene, Senior Vice President and General Counsel for the National Shooting Sports Foundation has a piece at The Federalist, that digs deeper into Monday's SCOTUS denial of cert to almost a dozen Second Amendment related cases. Keene says it appears to be an admission that the conservative associate justices think Chief Justice John Roberts can’t be trusted to protect the Bill of Rights.

These four associate justices could have voted to hear any of the 10 petitions, but not all four chose to bring the cases before the court. That’s telling in as much as it is disturbing. The fact that four justices who complained the court needed to hear Second Amendment cases passed on 10 chances to do so tells us much about the court’s “swing vote.”

One or more of the conservative justices are in essence telling us Roberts cannot be trusted to interpret the Second Amendment as written, or faithfully apply the precedents of the Heller and McDonald decisions. He ruled in the 5-4 majority in both those cases.

Keene is right when he says that means the 2020 election will put the direction of the Supreme Court back into focus, just as the 2016 election did. It's clear it will take at least one more solid originalists justice to move the court in a direction that will protect our Second Amendment Rights. That makes it critical that every gun owner is registered to vote and then exercises that vote in November for the only candidate that will be able to assure that result - Donald Trump.

Obama Picks Sonya Sotomayor for Supreme Court

The AP is reporting this morning that President Obama will announce later today that his pick to replace Supreme Court Justice David Souter will be Judge Sonya Sotomayor. Sotomayor is currently a judge on the 2nd Circuit Court of Appeals.

This is particularly troubling because she clearly believes courts should make law and not interpret the law. Take for instance this quote, reported by the Washington Post reported that while speaking at Duke University in 2005, Sotomayor said:

“All of the legal defense funds out there, they’re looking for people with court of appeals experience” because “the court of appeals is where policy is made.”

This will come as a surprise to those who believe that the legislative branch makes policy and law. To be fair to Ms. Sotomayor, she realized she was on tape and tried to cover her tracks by saying:

“I know this is on tape and I should never say that, because we don’t make law, I know. Um, okay. I know. I’m not promoting it, I’m not advocating it.”

The audience got her point and chuckled. President Barack Obama said he wanted someone who has “empathy” with everyday people in making judicial rulings. Looks like he found the person he was looking for.

So what does her record say about her when it comes to Second Amendment cases? SCOTUS Blog has this on her past rulings related to the Second Amendment.

Second Amendment: Sotomayor was also a member of the panel that issued a per curiam opinion in another controversial case that may be headed for the Court next year. In Maloney v. Cuomo, 554 F.3d 56 (2009), the panel considered (as relevant here) a claim by a New York attorney that a state law prohibiting possession of a chuka stick (also known as nunchaku, a device used in martial arts consisting of two sticks joined by a rope or chain) violated his Second Amendment right to bear arms. The district court rejected the claim on the ground that the Second Amendment does not apply to the states. On appeal, the panel affirmed. Relying on the Supreme Court’s 1886 decision in Presser v. Illinois, it explained that it was “settled law . . . that the Second Amendment applies only to limitations the federal government seeks to impose” on the individual’s right to bear arms. The Supreme Court’s recent decision in District of Columbia v. Heller, the court continued, “does not invalidate this longstanding principle.” And while acknowledging the possibility that “Heller might be read to question the continuing validity of this principle,” the panel deemed itself bound to follow Presser because it “directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.” Maloney’s lawyers intend to file a petition for certiorari in late June.

And this from Dave Kopel's October 2008 article in NRA's America's First Freedom magazine:

According to Sotomayor, “the right to possess a gun is clearly not a fundamental right.” (U.S. v. Sanchez-Villar, 2004).

Obama, having disappointed the far left when it comes to the war and immediately seeking to restrict the Second Amendment rights of law abiding Americans, has given them everything they wanted in a Supreme Court Justice.

Update: More from Kopel on Sotomayor's views on the Second Amendment based on the Maloney v. Cuomo decision can be found here. Hat tip to Sebastian.

Heller Decision Set for Thursday

From SCOTUS Blog:

Tomorrow (Thursday, June 26), the Court will issue its remaining three decisions: Heller (DC Guns), Davis v. FEC (campaign finance), and American Electric Power (energy contracts). It is quite likely that Justice Scalia is writing the opinion in the Guns case. It could be a plurality opinion.

Update: A good piece on what a Scalia opinion could mean.

Hat tip to Dave Hardy.

Today is the Day

This morning, both sides will have their day in court in District of Columbia vs. Heller, also known as the D.C. gun ban case. As Randy Barnett points out in this mornings' Wall Street Journal, because "the District of Columbia is a federal entity, Heller provides a clean application of the Second Amendment which, like the rest of the Bill of Rights, originally applied only to the federal government." Barnett continues that in order for a state or local gun law can be challenged, the Supreme Court must decide that the right to keep and bear arms is also protected by the 14th Amendment, which limits state powers. So, while it is not likely that the Court will issue such a broad ruling in this case, even a decision upholding an unqualified individual right in Heller would still be a significant victory for individual rights. The Court will likely issue their ruling in June at the end of the term, setting up a renewed emphasis on guns in the Presidential election no matter what the ruling.

You can hear the oral arguments at 11:30 AM on C-SPAN and at the C-SPAN web site. C-SPAN will also archive the audio if you can not hear it when it airs live.

UPDATE: The Presidential Candidates on today's historic case according the Washington Times:

Sen. John McCain: The McCain campaign issued this press release today -

Statement By John McCain On The DC Gun Ban Case Before The Supreme Court
ARLINGTON, VA -- U.S. Senator John McCain today issued the following statement on District of Columbia v. Heller:

"Today, the Supreme Court will hear oral arguments on District of Columbia v. Heller, a landmark case for all Americans who believe as I do that the Second Amendment guarantees an individual right to keep and bear arms. I am proud to have joined in an amicus brief to the Court calling for a ruling in keeping with the clear intent of our Founding Fathers, which ensures the Second Amendment rights of the residents of District of Columbia are reaffirmed."

Sen. Barack Obama: Jen Psaki, a spokeswoman for Democratic presidential hopeful Sen. Barack Obama of Illinois, said Mr. Obama "believes the Second Amendment creates an individual right, and he greatly respects the constitutional rights of Americans to bear arms."

"He also believes that the Constitution permits state and local governments to adopt reasonable and common-sense gun safety measures," she said, but would not elaborate on the whether the senator supports the D.C. gun ban. (Note: Mr. Obama did not join 55 of his Senate colleagues in signing the congressional amicus brief supporting Heller.)

Sen. Hillary Rodham Clinton: did not respond to repeated requests from the Washington Times for comment on the Heller case. (Note: Mrs. Clinton did not join 55 of her senate colleagues in signing the congressional amicus brief supporting Heller.)

Lawyers for Heller File Brief in DC Gun Ban Case

Lawyers for Dick Heller, a security guard, filed a brief with the Supreme Court yesterday saying that the District's categorical restrictions are so broad that they cannot comply with the Second Amendment's protection of the right to bear arms.

"However else [the District] might regulate the possession and use of arms, their complete ban on the home possession of all functional firearms, and their prohibition against home possession and movement of handguns, are unconstitutional," wrote Heller's attorney, Alan Gura, one of three lawyers representing those who challenged the gun ban.

The case will be argued before the justices March 18, and it promises a historic examination of the Second Amendment.

Heller's brief said the amendment's preamble referring to the militia gives one, but not the only, reason the framers considered the amendment necessary.

Gun-rights advocates were shocked and felt betrayed last month when the Bush administration's U.S. Solicitor General Paul D. Clement, who represent's the government before the Supreme Court, agreed that the Second Amendment provides an individual right but also said that the appeals court had used the wrong standard in evaluating the District's law.

Clement said the D.C. Circuit's broad opinion could call into question federal gun-control measures, and he recommended that the District law be sent back to lower courts for evaluation "under a more flexible standard of review."

Heller's brief said limitations on the rights of individual to possess firearms should be held to the court's most restrictive scrutiny.

"Demoting the Second Amendment to some lower tier of enumerated rights is unwarranted," the brief said. "The Second Amendment has the distinction of securing the most fundamental rights of all -- enabling the preservation of one's life and guaranteeing our liberty."

Thanks to all VSSA members and other gun owners who answered the call to support the Association's efforts to file an amicus brief on the side of Heller. We reached our goal and are joining 39 other state associations and the brief should be filed in the coming days.

Virginia Presidential Primary Thoughts

Note: This is not an endorsement for any particular candidate but information for voters to use in deciding for whom to vote on February 12th.The presidential race will come to Virginia one week after "Super Duper Tuesday" and just like in 2000, Virginia could play a significant role.

If Senator John McCain, who after winning in Florida, continues to role through the 21 states voting tomorrow, then next week may be all but academic. But, if Mitt Romney, who is running a close second in many of the states can keep McCain from picking up a majority of the delegates up for grabs, Virginia may have a say in the outcome.

Gun owners know that McCain has been a fair weather friend. While he has opposed the Clinton Gun Ban both times he had an opportunity to vote on it, in 2000 he supported ending gun shows as we know them by pushing for background checks on private sales at gun shows. The bills he supported did not just impose background checks but went as far as creating a gun owner registration list, registration of gun shows, and turn casual conversation at gun shows into gun sales. McCain's disdain for the First Amendment is even more egregious. The McCain/Feingold bill made it harder for groups like NRA to communicate with gun owners prior to an election. Clearly, if McCain was a conservative early in his political life, he strayed from that path in the last decade. When he spoke to the NRA's "Celebration of American Values" he highlighted those times that he has been with gun owners.

Former Governor Mitt Romney also has a spotted past when it comes to gun rights. Running for the U.S. Senate against Teddy Kennedy in 1994, Romney said he doesn’t line up with the NRA and favored waiting periods on gun sales. He also supported the Clinton Gun Ban in both 1994 and when he ran for Governor of Massachusetts in 2002. As a candidate for Governor, he said "We do have tough gun laws in Massachusetts; I support them. I won’t chip away at them; I believe they protect us and provide for our safety." Now that he is running for President he has joined the NRA and has had a well covered faux pas regarding his history as a "lifelong hunter." He told attendees at the NRA's "Celebration of American Values" meeting in September that he supports the federal appeals court decision in the D.C. gun ban case. He discussed the issue on Meet the Press as well. Is he a pandering politician or has he really had a change of heart?

Then there is Mike Huckabee. As Governor of Arkansas, he had an "A" rating from the NRA. But, is he really a viable candidate or is he just splitting the conservative votes with Romney allowing McCain to win. Huckabee pulled an upset in Iowa on January 3rd but has not won since. He is basically out of money and is hoping to win in southern states with a high number of evangelical Christian voters to keep his hopes alive. At this point he appears to be running for the number 2 spot on the ticket and may be helping to catapult McCain to the nomination.

For Virginia gun owners who are Democrats, you don't have a pro-gun choice. I can't decide who is worse - Obama or Clinton. Both guarantee that if the Democrats win the White House, gun owners could be in for at least four tough years.

So, what should gun owners do on February 12th? Think long a hard about your decision. The winner of the election will likely have at least one Supreme Court nomination and possibly two. Focusing on the two candidates considered to have the best shot at getting the nomination, McCain claims he would appoint judges like Roberts or Alito yet it has been reported in National Review that McCain might not be so warm to justices like Alito after all. Romney has pledged to appoint justices like Scalia, Thomas, Roberts and Alito. On the Democratic side, we can guarantee that both Obama and Clinton would appoint the likes of Stevens and Ginsberg.

Gun owners are urged to vote on February 12th and to "Vote Freedom First."

UPDATE: According to Instapundit Romney said today that he would "veto any gun control bills that cross his desk as President, including a renewal of the 'assault weapon' ban." This is different than what he said in December on Meet the Press. He also repeated the already disproven claim that the NRA endorsed him in 2002. Instapundit also includes this link on Romney's current position on 2nd Amendment issues.

And this from Jake Tapper on an ABC News blog post: Obama told a crowd in Idaho that he has "no intention of taking away folks' guns." However, it is widely reported that Obama does support gun control and has a record of voting for it in the Illinois Senate. He supported handgun rationing (limiting handgun purchases to one a month) and the Clinton campaign of all people has pointed out when Obama was running for the state legislature, he responded on a questionnaire that he "supported banning the manufacture, sale and possession of handguns.''

Tapper also mentions the recent mistep of both Romney on the gun issue.

Supreme Court and D.C. Gun Ban

While I was on vacation, the Supreme Court of the United States (SCOTUS) agreed to hear the appeal of the D.C. Circuit Court's decision overturning D.C.'s handgun ban. It was widely expected that this decision would not be announced until after Thanksgiving but the Court announced the decision to hear the case on Tuesday - two days before the holiday. Over the holiday weekend, a number of OP/EDs were published - many supporting the individual rights interpretation of the 2nd Amendment. Some of the best were in the Wall Street Journal. In the event you have not seen them, I am providing the links to the public articles (some can only be accessed by subscribers).

Second Amendment Showdown

Guns and the Constitution

Court Sets its Scope on Handgun Ban

Justices to Weigh Handgun Ban (WSJ article on decision to hear case)

No news from SCOTUS on DC Gun Ban Case

The Supreme Court's orders announced Tuesday, November 13, did not mention any action on District of Columbia v. Heller (formerly known as Parker v. District of Columbia) or on the related petition by the plaintiffs who were denied standing in the U.S. Court of Appeals for the D.C. Circuit. Any guessing about the reasons for the delay would be just that. This means, based on the Court's current calendar, the next possible date for an announcement on the case would be November 26.

VSSA will post any updates here as we receive them.

D.C. Appeals Gun Ban Decision to Supreme Court

As expected, Mayor Fenty announced yesterday that the District of Columbia is appealing the D.C. Circuit U.S. Court of Appeals decision throwing out the city's gun ban. In his announcement, made on the steps of the Police HQ, Fenty said "This city does not need more guns."

The gun ban crowd is not exactly happy with this decision as they have been quoted as saying the DC law is not the most defensible. The city outright bans handguns not registered prior to 1976 and only allows rifles and shotguns if they are unloaded and secured with a trigger locked, and stored in a different location than the ammunition - thus making them useless for self-defense.

Some in the gun rights community are equally apprehensive. There are only four sure votes that we believe can be counted on our side on the Court. The swing vote, Anthony Kennedy, could go either way. It also is not a done deal that the court will hear the case. If not, D.C. will have to scrap their law and come up with something else - likely one that bans carrying guns outside the home. In any case, most legal eagles believe the Court if it hears the case will likely make a narrow ruling with little national impact other than to settle the question of whether the 2nd Amendment protects an individual or collective right. We should know by November if the court will hear the case and if they do, expect a ruling likely the last day of the term in June - right smack in the middle of a presidential election.

You can read about the District's decision and any possible national impact by clicking here. I hope to upload a link in the next couple of days to audio of the Independence Institute's Dave Kopel discussing the issue with NRANews' Cam Edwards as heard on the Tuesday night show.