Opinion
New York – -(AmmoLand.com)- The U.S. Supreme Court, knows that the driving mechanism of the right of the people to keep and bear arms rests on the assumption, taken as axiomatic, self-evident true, that the right is grounded on the natural, fundamental right of armed self-defense that itself is inextricably bound to the basic right of self-preservation and personal selfhood, i.e., personal autonomy. The right exists inherently in each person as an individual Soul, as the Divine Creator intended.
If the Second Amendment were to be treated as a “collective right,” that is tantamount to saying there is no right at all. The right would be nugatory, because right would belong solely to the State, not to the person.
The framers of the Constitution couldn’t have meant that. They didn’t put pen to paper just to waste ink. Moreover, such an interpretation would conflict with the very import of the Bill of Rights, essentially deflating the import of the entirety of it. For, without a personal right of armed self-defense, man is vulnerable to attack from predatory beast, which is bad; and from predatory man, which is worse; and from the predatory government, which is worst of all.
So, in Heller, Justices Scalia, Thomas, and Alito took that opportunity—when it finally came around—to pointedly and decisively hold that the right of the people to keep and bear arms is an individual right, unconnected with one’s service in a militia. This of, course, is plain from the text of the Second Amendment but since many courts and scholars choose to ignore it, pretending that the language of the Second Amendment doesn’t mean what it says, the High Court made the point clear, so that no one can conveniently obfuscate the meaning of the language.
Note: the issue as to the meaning of the nature of the right of the people to keep and bear arms was never before the Heller Court. The only two issues before the Court were whether:
“the total ban on handguns under D.C. Code §§ 7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4), as well as the requirement under D.C. Code § 7-2507.02 that firearms be kept nonfunctional, violated exercise of the constitutional right of the people to keep and bear arms.”
But, Justices Scalia, Thomas, and Alito knew that striking down these Statutes would do little to constrain a government that abhors civilian citizen exercise of the Second Amendment right, unless the High Court made clear that the right of the people to keep and bear arms is an individual right, and NOT a privilege to be bestowed on a person by government prior to exercising the right.
The District of Columbia would continue to enact new laws that did much the same thing as the old laws. It only forced Anti-Second Amendment Governments to exercise more discretion and creativity in denying Americans their God-given right.
Once the right is understood clearly, succinctly, and unambiguously, to be an individual natural right, rather than a Government bestowed privilege, it is easy for reviewing courts to ascertain whether government action constrains the exercise of the core individual right.
Of course, that should happen but didn’t happen. The recent New Jersey bill, for one, is evidence of rabid disdain of many in Government toward the Second Amendment. It also demonstrates the tenacity of Anti-Second Amendment in continuing to drum up more and more unconstitutional codes, regulations, ordinances, and statutes despite of and in spite of the clear pronouncement in Heller. Resistance to Heller is obdurate.
Still, Justices Scalia, Thomas, and Alito had held out the hope that a clear and categorical pronouncement on the import of the Second Amendment would constrain resistant vocal forces in Government. And, in fact, Anti-Second Amendment Courts cannot dismiss the salient holding of Heller out-of-hand but must remark on it, even as they strain to uphold unconstitutional gun laws, as they continually do.
Be that as it may—
At least in Heller, with the idea that the right of the people to keep and bear arms is a collective right now, finally, laid to rest—and not to be denied out-of-hand the Heller Court could deal effectively with the issue at bar in Heller. Justice Scalia, writing for the majority, said,
“We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.”
But, the impact of Heller on New York State Rifle and Pistol Association vs. Bruen may be minimal.
Even if the High Court finds the New York City Rule to be unconstitutional and strikes it down, this only amounts to a finding simply that the decision on the Plaintiff Petitioners’ applications for an unrestricted concealed handgun carry license was unconstitutional. An answer to the “narrow question” as reframed, only requires that; nothing more.
At best, the High Court can, consistent with the rephrasing of the question on review, find the City’s procedures for determining whether an applicant meets the stringent requirements of ‘atypicality’ to be inadequate.
If that is to happen, a remand of the case to the trial court would require the trial court to strike down the procedures now in place in New York City, and instruct the Government to promulgate new procedures for handling the licensing of concealed handgun carry licenses. This, unsurprisingly, is what the Respondents have requested. It would be a satisfactory win for them. For the constitutionality of atypicality would go unanswered: The handgun licensing structure of New York would remain intact; and the core issue the Petitioners wanted decided—an unqualified right of armed self-defense outside the home—would remain unresolved.
And the redrafting of New York City’s “may issue” procedures would likely be no better than the ones currently in place because the NYPD License Division would still retain authority to grant or reject applications: an inherently subjective judgment call.
Moreover, the ramifications of “may issue” procedures only impact New York—consistent with the issue as restated. Other “may issue” jurisdictions can proceed as they always have.
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