In the Bard’s play, Henry VI (Part 2), Dick the Butcher is cast as a large and powerful man, second-in-command to the anarchist Jack Cade, in the rebellion against His Majesty the King. Dick’s most famous line is, “The first thing we do, let’s kill all the lawyers.” I am no anarchist, but one thing is certainly true: lawyers f(ornicate) up just about everything!
The Second Amendment to the Constitution of the United States ought to be easy to understand:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
But, of course, there are always those, including those who are themselves guarded by armed men, who do not want Other People to be allowed to keep and bear arms. And thus we’ve had the Second Amendment violated for more than 200 hundred years, as various states passed laws to restrict Americans from owning firearms. In United States v Cruikshank, 92 U.S. 542 (1876), the Supreme Court held that the Second Amendment only prohibited the federal government from banning private ownership of firearms:
The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.
Under the Cruikshank decision, states, counties, and municipalities could ban the private ownership of firearms. It took until District of Columbia v Heller, 554 U.S. 570 (2008), for the Court to hold that the right to keep and bear arms is an individual right, and McDonald v. City of Chicago, 561 U.S. 742 (2010) incorporated the Heller decision to apply to the states. A full 219 years passed between the ratification of the Second Amendment and the Supreme Court finally applying it to the states.
From The Wall Street Journal:
Why America’s Gun Laws Are in Chaos
Judges clash over history a year after Supreme Court upended how courts decide Second Amendment cases—‘the whole thing puzzles me’
by David Gershman | Tuesday, August 1, 2023 | 5:30 AM EDT
The Supreme Court last summer sought to clarify its expansive reading of the Second Amendment. Instead, it set off chaos.
The decision in New York State Rifle and Pistol Association v. Bruen decreed that gun-control laws of today must have a clear forerunner in weapons regulations around the time of the nation’s infancy, regardless of the modern public-safety rationale behind them.
The Journal’s paywall begins to fad out te text at this point, but you can read the entire thing for free here.
The result: Hundreds of gun cases litigated in recent months have become a free-for-all, with lower courts conflicted or confounded about how and where to draw limits on gun rights.
“There’s all this picking and choosing of historical evidence. ‘This is too early. This is too late. Too small, too big,’” Judge Gerard Lynch of the Second U.S. Circuit Court of Appeals said during a recent argument about a new law in New York that prohibits guns in sensitive places like parks, museums and bars. “The whole thing puzzles me.”
Associate Justice Clarence Thomas is a brilliant jurist, but somehow, some way, he couldn’t just leave the Second Amendment where it was: “The right of the people to keep and bear arms shall not be infringed.” Instead, he created a standard under which the right of the people to keep and bear arms could be infringed, if only we had started infringing upon them early enough. This is what happens when lawyers are involved!
Of course, other lawyers, our federal, state, county, and municipal lawmakers were just never satisfied with a simple statement of rights!
In that case, the right of licensed handgun owners to carry weapons into bars and theaters could hinge on 19th-century statutes that barred drunks from carrying firearms, and outlawed guns and butcher knives in social parties attended by ladies. A case decided last fall held that the federal ban on guns with obliterated serial numbers was unconstitutional because unmarked guns were perfectly legal in the 18th century.
The Bruen case launched the upheaval. In that decision, the Supreme Court said New York couldn’t require concealed-carry applicants to prove a dire need for self-protection. The 6-3 opinion, written by Justice Clarence Thomas and endorsed by five fellow conservatives, said the restrictive licensing rules violated the Second Amendment right of ordinary, law-abiding citizens to carry handguns for self-defense.
The opinion rejected the practice of lower courts considering the public-safety intentions of gun laws being challenged. The courts often found that the government’s goal of curbing gun crimes and mass shootings outweighed the liberty interests of gun owners.
That practice watered down gun rights, the opinion said. Instead, Thomas wrote, to pass constitutional muster, gun restrictions within the scope of the Second Amendment must be deeply rooted in historical precedent. Governments defending them bear the burden of showing that their laws are similar, or at least analogous, to firearm regulations widely enforced around the time of Second Amendment’s ratification in 1791.
Dion Green spoke to other gun-violence survivors at the Supreme Court ahead of the Bruen case oral arguments in 2021. PHOTO: LEIGH VOGEL/GETTY IMAGES
As we have previously noted, gun laws are almost uniform across Pennsylvania, because state law does not allow local governments to impose legislation on firearms which is stricter than the state law. Yet Philadelphia, with just over 12% of the Keystone State’s population, has suffered slightly over half of the murders in the Commonwealth. If “gun laws save lives,” as the left claim, shouldn’t we see homicide rates relatively even across the state?
There is a lot more at the Journal original, much of it dealing with older laws being contemplated by today’s lawyers and judges, in their attempts to see if yet another gun control law passes constitutional muster. And this is the problem with Justice Thomas’ opinion: he added a standard, one very loosely defined and giving lower courts very little guidance, when the simplest standard is the words of the Second Amendment, “The right of the people to keep and bear arms shall not be infringed.”
Near the end of the article comes the point I found most important. U.S. District Judge Stephen McGlynn of East St. Louis, Ill., ruling against the state’s assault-weapons ban, said:
Can the senseless crimes of a relative few be so despicable to justify the infringement of the constitutional rights of law-abiding individuals in hopes that such crimes will then abate or, at least, not be as horrific? Likely no.
That’s the point the gun-grabbers can never seem to address: why would taking away the right of law-abiding Americans disarm criminals, who by definition, don’t obey the law?
Who knows? Perhaps Justice Thomas just could not get the rest of the majority to agree that the Second Amendment simply means what it says, that the right of the people to keep and bear arms should not, shall not, be infringed. In the end, a simple and clear statement of a basic constitutional right has been messed up by lawyers!