The Second Amendment and a Judge’s Misunderstanding

And a State’s misunderstanding. Fortunately, the Ninth Circuit, that bastion of conservatism, corrected the State’s misapprehension and struck its law regarding a man’s right to carry a firearm outside his home. The Ninth’s dissenter, though, is illuminating, and worrisome.

The situation is this. California is a “may issue” state, meaning that local authorities are allowed to use their discretion in deciding whether to issue a concealed carry permit or license that would authorize a California citizen to carry a firearm outside his home. California is even more restrictive in that “may issue” bit, though; it requires its citizens to satisfy those local authorities that the supplicant applicant has “good cause” for being permitted. That’s the State’s misunderstanding, corrected by the Ninth.

San Diego County residents, including the six plaintiffs in this case, were forced to sue for their licenses because the sheriff’s department, the “local authority” here, routinely—universally—denied licenses because the sheriff could never be satisfied that “good cause” existed. The case made its way to the Ninth with the above victory for the plaintiffs. The majority opinion held, in part, that

One of Heller’s most important lessons is that the Second Amendment “codif[ies] a pre-existing right….”

…a law that destroys (rather than merely burdens) a right central to the Second Amendment must be struck down.

And [citations generally omitted, emphasis in the original]:

We thus disagree with those courts—including the district court in this case—that have taken the view that it is not necessary (and, thus, necessary not) to decide whether carrying a gun in public for the lawful purpose of self-defense is a constitutionally protected activity. Understanding the scope of the right is not just necessary, it is key to our analysis. For if self-defense outside the home is part of the core right to “bear arms” and the California regulatory scheme prohibits the exercise of that right, no amount of interest-balancing under a heightened form of means-ends scrutiny can justify San Diego County’s policy. See Heller (“The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”).

And [citation omitted, emphasis in the original]:

But the fact that a small group of people [e.g., retired cops, and others suggested in the opinion] have the ability to exercise their right to bear arms does not end our inquiry. Because the Second Amendment “confer[s] an individual right to keep and bear arms,” we must assess whether the California scheme deprives any individual of his constitutional rights. Thus, the question is not whether the California scheme (in light of San Diego County’s policy) allows some people to bear arms outside the home in some places at some times; instead, the question is whether it allows the typical responsible, law-abiding citizen to bear arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding “no.”

Certainly, reasonable men can disagree about the degree of burden that’s appropriate (demonstrating a reasonable proficiency with firearms, akin to demonstrating a reasonable proficiency with cars as a prerequisite to being issued a driver’s license, for instance; at the other end of the scale, four states have no licensing requirements at all), but clearly that burden cannot become a barrier, as the appellate court acknowledged.

This is where the dissenter’s misunderstanding comes in. Judge Sidney Thomas argued this:

The Supreme Court has instructed that the core of the Second Amendment is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller…. Carrying concealed weapons in public by definition does not inherently involve defense of hearth and home, so the core of the Second Amendment is not implicated.

But this is a misreading of the Supremes’ opinion as well as of the 2nd Amendment itself. What the Supreme Court said, more fully, in that cite is this:

And whatever else it [the 2nd Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

Plainly, “defense of hearth and home” was offered as an example of what is protected by the 2nd, not an enumeration of the total reach of it. Beyond that, this is the 2nd Amendment:

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.

Not only is “defense of hearth and home” not numbered here, it cannot be: limiting the security of a free State to defense of points of property prevents on its face the ability to see to the security of the State: those arms must be borne where the threats exist (including preemptively)—by the citizens acting individually, as is the duty of every citizen in a free State, as well as collectively through a militia (or today’s professional armed forces)—for when the threat reaches a domicile’s doorstep, the State’s security already is lost.

But the right to “keep and bear Arms” is an individual right, as well as the collective right of the individuals’ militia, as the Supreme Court also has acknowledged, and for much the same reason. If the individual citizen cannot “keep and bear Arms” nearly anywhere he may choose to go, then he cannot see to his own security (not only his own defense). And if the individual is not secure, then the aggregation of them that is a “free State” cannot be secure.

But the matter goes beyond even that. What is “security?” It’s far more than merely self-defense. Pedantically, the first definition of “security” in Johnson’s Dictionary, contemporaneous with the writing and ratification—by the people of the United States—of our Constitution, is “freedom from fear.” We have to go all the way to the third definition (of five) to get to “Protection; defence [sic].”

And it is exactly that. Any infringement of this right, any limit a Court might presume to place on this Amendment, can only reduce that freedom from fear. Fear comes from many sources, not only from an immediate attack on one’s person. Fear also comes from limitations on individual responsibilities, it also comes from limitations on individual liberty, it also comes from sources only tenuously, if at all, related to politics or general society.

This makes the permissible purposes for carrying firearms very broad, indeed, deliberately vaguely put in the Amendment, and beyond the ability of government to prescribe; they are not limited to “hunting,” or to “personal defense,” or to…. For a government—any branch of it—to determine what permissible purposes may be is to enumerate what can only be a subset of the 2nd Amendment’s range of purposes, and that is a very dangerous determination.

Unfortunately, the Ninth’s majority judges also seem to misunderstand the reach of the 2nd Amendment, focusing as they do on the “purpose” of self-defense, but they got to the correct immediate decision, at least.

The Ninth’s decision can be read here. The Supreme Court’s Heller decision can be read here.

Obama’s “Peace Talks”

This article is triggered by Gerald Seib’s recent piece in The Wall Street Journal.

A White House statement cited by Seib:

The President…reiterated the United States’ serious and growing concern about the rising number of Palestinian civilian deaths and the loss of Israeli lives, as well as the worsening humanitarian situation in Gaza[.]

Not a word about the primary cause of those Palestinian deaths, just the outrageous moral equivalence asserted between the terrorists’ assault on Israel and Israel’s defense against that assault, and through that the tacit implication (excuse the redundancy) that those Palestinian civilian deaths are Israel’s doing.

No harm to peace-making by Obama’s Cabinet there.

And this:

Meanwhile, Israel also was squirming over the talks between the US and five international powers and Iran over the Iranian nuclear program. As it became obvious that those talks were moving in the direction of an agreement that would leave Iran with a continuing capacity to enrich uranium, Israeli discomfort grew. When the talks were extended earlier this month for four more months, it grew further. A separate issue, yes, but one that affects the atmosphere.

No, this is not a separate issue; Iran’s nuclear weapons program and the Palestinian Authority’s terror war against Israel are inextricably intertwined. Let’s leave aside the fact that Iran is largely funding and almost exclusively arming the PA (apart from the latter’s primary industry of rocket-making within the Gaza Strip (itself supplied by inputs from Iran)). Iran has as its own goal, to use Iran’s words, of “wiping Israel from the map.” What does the Obama administration, and his Secretary of State (and Seib) think Iran will do with its uranium, enriched to weapons grade? The question answers itself: Iran will attack Iran with nuclear weapons, or supply the weapons to the PA (and/or other terrorist organizations in the region—Hezbollah comes to mind) for the purpose of seeing them used in Israel.

Iran’s nuclear weapons program is as much a threat to Israel’s existence as is the PA’s constant terror attacks. The PA is a client of Iran.

President Barack Obama, and his Cabinet, surely know this. From this, another question raises itself: what is the value—in fact, what is the purpose—of Obama’s “peace talk” efforts as they concern Israel and the Palestinian Authority?

Taliban and ISIS

ISIS has expanded the systematic destruction of Iraq’s cultural treasures. In Mosul, the tomb of Jonah, revered by Judaism, Christianity, and Islam alike, has been “turned…to sand” by ISIS explosives placed so as to achieve the barbarity in one explosion.   The Nabi Younes Mosque which housed the shrine also has been destroyed.

This gang has been systematically destroying all of the shrines and graves in the territory it has seized from Iraq, under the claimed…theory…that it’s unholy to worship at such things or to venerate anyone but Mohammed. On the other hand, they also find it convenient simply to rob from valuable collections of antiquities, such as the Mosul Museum.

How does one discriminate between this barbarian and that one? It isn’t necessary. Both want the same response.

What is the Obama Administration’s Goal?

[T]he [UN] Security Council adopted the presidential statement calling for an “immediate and unconditional humanitarian cease-fire….”

This is the second Security Council cease-fire resolution in the last few days that the US has supported. Such cease fires plainly are one-sided. On the one hand, they allow the terrorists breathing time during which to rearm, refit, and replace their combat losses, at least to an extent. On the other hand, they provide no benefit to the Israelis; rather, they actively harm the Israeli effort by interrupting, if not breaking, IDF momentum.

On top of that, there’s no evidence the Palestinian Authority would respect even this cease fire, anyway: they’ve either rejected other cease fire offers—from Egypt, for instance, and Jordan—or they’ve simply, cynically, violated them.

This present terrorists’ war also is a direct outcome of the prior “major” cease fire implemented just two years ago, as predicted at the time.

The Obama administration knows all of this.

A…Misunderstanding…on the Supreme Court

The liberal wing of the Supreme Court is at it again. The three women of the wing are furthering their demand that women generally are entitled to get their contraceptives via OPM, rather than with the women’s own money—apparently, it seems, because these three female Justices think women generally are too helpless to have their own money. These three also are continuing their demand that access to contraceptives must take priority over the religious tenets of the ones they would require to make the provision.

Writing for the dissent to a Supreme Court order advising that Wheaton College, a Christian school in Illinois, need not continue to provide birth control coverage absent filing a form with its insurer asserting its religious objections, Justice Sonia Sotomayor wrote the following:

Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation [in Hobby Lobby to justify expanding exemptions from contraceptive coverage to closely held commercial businesses], the court now, as the dissent in Hobby Lobby feared it might, retreats from that position.

Of course, the Court’s opinion created no such reliance, as Justice Sotomayor knows full well. The “religious non-profit exemption” was one of a couple of possible alternatives proffered in the Court’s opinion that illustrated less restrictive means of facilitating women’s ability to obtain contraceptives. The Hobby Lobby ruling included this potential alternative in a part of its discussion of the requirement that a government-generated religious burden (or burden of any sort) be applied through the least restrictive means possible:

The least-restrictive-means standard is exceptionally demanding, see City of Boerne…and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases. See §§2000bb–1(a), (b)(requiring the Government to “demonstrat[e] that application of [a substantial] burden to the person…is the least restrictive means of furthering [a] compelling governmental interest” (emphasis added)).

The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that this is not a viable alternative.

That the opinion went on at greater length about the “religious non-profit exemption” in no way alters its status as one of at least two hypothetically offered alternatives for satisfying the (hypothetically accepted) government interest in providing contraception free to the user. There plainly is no basis to any claim that filing for a “religious non-profit exemption” is the sole means of being…excused…from providing religiously proscribed contraception.

Another aspect that makes the Wheaton matter interesting here, though, is the question of the form itself that Sotomayor insists that Wheaton should be bound to file in order to get that “religious non-profit exemption.”

As Wheaton correctly notes, it’s not who pays for the provision that’s at issue, it’s that Wheaton would be required to sanction the provision by still being required to have contraception coverage done in their name.

“Wheaton believes that authorizing its [insurance administrator] to provide these drugs in Wheaton’s place makes it complicit in grave moral evil,” the college said in its injunction application filed Sunday with the court. “Wheaton can neither provide the mandated coverage nor execute and deliver” forms that prompt others to do so.

This is clear enough to all but the Progressive who cannot distinguish the pecuniary from the moral.