Whatever Supreme Court decides in gun carry case,
infringements will continue
By David Codrea, April 23rd 2014
JPFO writer contributor, © 2014.
Gun owners who monitor such things are on pins and needles after the Supreme Court apparently (temporarily?) kicked the can down the road in Drake v. Jerejian, a New Jersey case considering "Whether the Second Amendment secures a right to carry handguns outside the home for self-defense; and ... whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a 'justifiable need' for doing so."
"The U.S. Supreme Court has pushed its consideration of a case challenging New Jersey's mandate ... to April 25," The Washington Times reported, further explaining plaintiff "Drake applied for a handgun permit from New Jersey in 2010 but was rejected ..."
The Counsel of record for the case is Alan Gura, of Hellerand McDonald fame.
Gura has argued that four federal district courts, along with several state supreme courts, have ruled that the Second Amendment extends the right to carry handguns to outside of the home for self-defense, while several other federal courts have disagreed," the National Constitution Center explained. Such conflicts among the lower courts would seem to make the case a natural for SCOTUS consideration, and seasoned pro-RKBA court watchers are as cautiously hopeful as they can be.
"[T]he case has been relisted for next Friday," New Jersey gun law expert, attorney and author Evan Nappen told his Facebook followers about the delay. "This is a potentially positive sign. It got past round one."
"Conferences are entirely private, so we can't know what went on," author and attorney David T. Hardy weighed in on his Arms and the Law blog. "I can think of several possibilities. Most obviously, perhaps some Justices wanted longer to think it over. A good sign. Or perhaps they wanted to see what would happen in the Ninth Circuit -- will California be allowed to intervene, which might mean a petition for cert.? There really is no way to say, although either of these possibilities mean the Court is giving it serious consideration."
Will the court have enough judges lined up to grant certiorari?
"Each year the Justices and their law clerks review anywhere between 8 to 10 thousand petitions that come to Court – each one of them hoping that the Court will agree to hear their case at oral argument," C-SPAN advises in an introduction to a video explaining the process. "Of these thousands, only 80-100 get heard during a term."
And if they do hear the case, how will they decide?
Can we count on "conservative" Chief Justice John Roberts, who inexplicably found the approval of the Framers in Obamacare?
Will "conservative" Justice Antonin Scalia once again give aid and comfort to "progressive" gun-grabbers, as he did in Heller? What prompted him to volunteer the unnecessary (not to mention subversive) opinion "We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"?
Will "conservative" Justice Clarence Thomas let all gun owners down, the way he did Thomas Lamar Bean, when he decided it was totally OK for the fedgov to create a prohibited person out of a good citizen who inadvertently had some ammunition in his car when he visited Mexico after attending a gun show?
While different legal minds and "informed" court-watchers are nattering on about judicial review, and whether intermediate or strict scrutiny should apply (and perhaps even contesting how many angels can dance on the head of a pin), what the High Court will not address, should they elect to hear the case, are the clear words those of us, without robes and law degrees and political connections with attendant obligations, understand instinctively:
"... shall not be infringed."
"[I]f they accept either Seegars or Parker, I believe the court will not dare say there is no individual rkba," I noted back in 2005. "But if they find there is one, it will be so heavily burdened with 'reasonable restrictions' as to ensure the status quo. They'll never admit the truth unless someone, that would be us, has enough power to compel them."
They won't because there's no "or else" attached to a demand.
Perhaps the Court will hear Drake. Perhaps it will even decide in favor of "shall issue" permits, and the gun groups can all tell us what a great victory it is for "gun rights," and inarguably, it will be a definite incremental advance in the direction of more people going about while armed.
Still, it's hard to square government permissions to bear arms with the express proscription that they really have no legitimate authority, legal, moral or otherwise, to have any say in the matter, that is, until such time as someone abuses the right and victimizes another by threat or action. And no matter what the Black Robes say, you can bet it will be a far cry from an admission that no permits should be needed because no one in government has the delegated power to require them, and those who say they do are frauds and usurpers.
Somehow, a quote from Thomas Pynchon's "Gravity's Rainbow" comes to mind:
"If they can get you asking the wrong questions, they don't have to worry about answers."
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David Codrea is a field editor at GUNS Magazine, penning their monthly "Rights Watch" column. He provides regular reporting and commentary at Gun Rights Examiner and blogs at The War on Guns: Notes from the Resistance.
