Editorial: Courts are solidifying gun rights

The courts in recent years have been nailing down ever more solidly the right to keep and bear arms.

In the District of Columbia the U.S. Supreme Court struck down restrictive ordinances that required that guns be kept at home disassembled or nonfunctional with a trigger lock mechanism, saying this violated the Second Amendment.

Justice Antonin Scalia opined that the Second Amendment reference to a “militia” is a prefatory clause that does not limit the operative clause of the amendment, which guarantees “an individual right to possess and carry weapons in case of confrontation.”

In the case of McDonald v. Chicago the high court overruled a 7th U.S. Circuit Court of Appeals and held that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense apply to the states. This overturned a Chicago ordinance banning the possession of handguns.

Justice Samuel Alito wrote that rights “fundamental to the Nation’s scheme of ordered liberty” or that are “deeply rooted in this Nation’s history and tradition” are appropriately applied to the states through the Fourteenth Amendment.

Now, a panel of the usually reliably liberal 9th U.S. Circuit Court of Appeals has ruled 2-1, in the case of Young v. Hawaii, that states may not prohibit open carry, though the ruling still lets states require permits for concealed carry.

“But, for better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense,” writes Judge Diarmuid O’Scannlain. “We would thus flout the Constitution if we were to hold that, ‘in regulating the manner of bearing arms, the authority of [the State] has no other limit than its own discretion.’ … While many respectable scholars and activists might find virtue in a firearms-carry regime that restricts the right to a privileged few, ‘the enshrinement of constitutional rights necessarily takes certain policy choices off the table.’”

Nevada is one of 30 states that currently allow open carry, while 15 require permits, including neighboring Utah, for open carry and five states, including California of course, plus the District of Columbia prohibit open carry.

Judge Scannlain further pointed out that the right to self protection is one of those unalienable rights that existed prior to the Constitution and the Bill of Rights merely restrained Congress from infringing.

The ruling cited the English Declaration of 1689 as having enshrined “the right of having and using arms for self-preservation and defence.”

“In McDonald, the Court incorporated the Second Amendment against the States through the Fourteenth Amendment, invalidating a Chicago law that effectively banned handgun possession by residents of the city. …” the judge explained. “In determining whether the pre-existing right codified by the Second Amendment was ‘fundamental to our scheme of ordered liberty,’ the Court stressed the centrality of self-defense: ‘Self-defense is a basic right, recognized by many legal systems from ancient times to the present day …’”

Perhaps, such sound reasoning will deter Democratic legislators in 2019 from trying to restrict gun rights, as they have so often in the past.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

22 comments on “Editorial: Courts are solidifying gun rights

  1. Steve says:

    No, it won’t stop them. Any time they are told to hold back and ease up, they press harder.

    I expect they will double down if they take control in November.

  2. Bill says:

    Were you being ironic or sarcastic when you expressed the hope that Democratic Legislators would exhibit sound reasoning as to gun legislation?

    I always get the two terms confused. Perhaps they both apply. In event, it is highly unlikely that today’s Democrats will ever choose rational analysis over simplistic emotionalism when it comes to the Second Amendment.

  3. Rincon says:

    Don’t forget the right to make untraceable 3d-printed plastic handguns from plans provided on the Internet.

    It would appear that the second Amendment may have been made in order to prevent the formation of a professional army rather than to enable right wing nut cases to prepare for their version of Armageddon. From Federalist paper 29 by Alexander Hamilton: “If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper.” In this paper, Hamilton uses the phrase, “well regulated militia” many times. Coincidence?

  4. Anonymous says:

    The “right” to keep and bear arms is no more absolute than any other identified in the Constitution.

    Conservatives seem to recognize this as it relates to even “life” which most would agree is the most precious “right” an individual can have and yet that “right” is regularly “impaired” by conservatives.

    The other “rights” identified within the Constitution are similarly acknowledged to be other than absolute (a soldier drafted by his country may not reveal secrets lest his life be taken; a more serious impairment of the “right to free speech” can scarcely be imagined) but for some incomprehensible reason, to merely mention ANY limitation on the “right” to keep and bear arms causes an outpouring of hostility and anger from those on the right.

    Can anyone explain this?

  5. Rincon says:

    You’re so right. To be consistent, those who claim that reasonable limits on the right to bear arms are unconstitutional must also claim that libel laws, fraud laws (a form of speech), laws forbidding Rostafarians from using marijuana, etc. are unconstitutional.

    This effectively removes the unconstitutionality argument from the table, although there is plenty of room left to argue about the wisdom of laws limiting firearms.

  6. bc says:

    There are a multitude of reasonable limitations on the right to bear arms. I cannot buy a rocket launcher or fully automatic machine gun or armor piercing rounds. If I want to buy a gun in most cases I have to have a background check. Here in Illinois I have to have a background check to own a gun, buy ammunition or shoot at a shooting range.

    If I want to put a gun in my pocket I have to have a concealed weapons permit. There are restrictions on where I can carry said weapon, either concealed with a permit or open carry. There are restrictions on who can sell weapons and ammunition.

    Most firearm owners would say that these restrictions are reasonable. There may even be a case to add a few more restrictions, the so called gun show exemption for example.

    Most rights in the Constitution are not absolute, the same with gun ownership. But as with the right to free speech, press and assembly, the law must be biased towards that right, not against that right.

    Gun owners here the discussions from those who object to private ownership of guns and they do not hear “reasonable”, they hear that the long term goal is to remove guns from law abiding citizens. And they have seen this already with restrictions here in Illinois and DC, and restrictions that have been proposed and enacted in California. Some of these restrictions that have been turned down by the Court but the push to do away with private ownership of firearms continues.

  7. Rincon says:

    The push to for any nut case or felon to own the firearms of their choice continues as well. I do have to correct your statement that you have to have a background check to own a gun in Illinois. Not true if you sashay over to Indiana where you don’t even need an ID nor if you purchase it over the Internet.

  8. Steve says:

    Ah, Rincon, you are so careful to omit particulars. It is illegal for an Illinois resident to bring in a gun unless that resident also has an Illinois license to carry.

  9. Bill says:

    Guns are the answer to firearm crimes. Eliminate the instrumentality and presto, you eliminate the crime and the criminal act.

    Solves all of the problems. Seems simple. Blame the gun and not the individual. That way you don’t have to even address the underlying malaise at the root of such places as Chicago where gangs run the City and innocent lives are lost that should shock the politicians and the public but somehow, just don’t seem to get very much attention. We lose more young U.S. men and women in some of our urban cities than we do in our Armed Forces in combat zones.

    But, those inter city deaths are not covered by the media and are largely ignored by the leaders. Blame the guns and then you don’t have a convenient scapegoat.

    Take away the guns. But wait. You then run into some pesky problems such as law abiding citizens are without the means to protect themselves and only the criminals and the government have weapons.

    How inconvenient.

  10. bc says:

    So Rincon, what is your definition of “Reasonable”? And yes, Steve is correct. For me to own a firearm in Illinois I must have a background check. Also, I am not sure I can sashay over to Indiana and legally buy a gun. While in a store in TN a couple of years or ago, I asked the clerk what the rules were and he said that he could not sell a gun to me as I did not live in TN.

    An no, most gun owners do not want nut cases or felons to own firearms.

  11. Rincon says:

    It is possible that it is illegal for an Illinois resident to bring a gun into the state without a license, but since you provide no evidence of it, I’m not quite ready to accept it. Nevertheless, let’s assume that you’re right because it matters little. The fact is that 60% of the guns used in crimes in Chicago come from out of state. Coincidence? Not likely. In addition, hundreds came from two suburban gun shops, making it obvious that these stores knowingly sell weapons for criminal use, but our laws are so weak that it is impossible to convict the shop owners of any crime.
    https://www.washingtonpost.com/news/politics/wp/2017/11/07/where-the-guns-used-in-chicago-actually-came-from/?utm_term=.abf0c7db3b56 Read below.

    So anyone with an Illinois FOID card can buy guns in Indiana. So anyone who’s “clean” can buy large numbers of firearms and then “lose” them, have them “stolen”, or sell them to “other hobbyists” without penalty as long as it cannot be demonstrated in court that the seller knew the buyer was unqualified to purchase, which is FAR different from knowing that a buyer IS qualified.

    So where do criminals get guns? Well, Congress has seen to it that no one can easily find out: According to the Washington Post, 1% of dealers accounted for nearly 60% of crime gun traces in 2000. The firearms bureau knows who they are, but Congress passed a law prohibiting them from sharing this information with researchers or policymakers, making it difficult to even identify the numerous mechanisms for getting legal guns into illegal hands. Wouldn’t want the researchers to know too much, would we?

    There are numbers from jailhouse surveys and firearm traces by police, but the information is woefully incomplete. 30% of guns found at crime scenes were stolen, but tellingly, 40% of those thefts were unreported – and for 62% of them, the person saying the weapon was stolen would not specify where it had been at the time of the theft.. Hmmmm…. Only 10 states require citizens to report theft of a firearm. This makes straw purchases unbelievably easy. But the NRA somehow thinks being required to report theft of a firearm within a reasonable time to be an infringement on the rights of law abiding gun owners. Really?

    It is rare for traffickers to be prosecuted. The ATF prosecuted only 57 cases for illegal dealing of firearms in 2015. The reason is pretty easy to decipher. Federal law allows hobbyists to sell their weapons with only the restriction that they can’t knowingly sell to a felon, etc. Since hobby is defined as, “An activity done regularly in one’s leisure time for pleasure”, and because most straw purchasers are small time and don’t earn their living from their dealings, it’s extremely difficult to convict them.

    The bottom line is that making gun trafficking risky requires only a few benign actions: 1) Require all gun buyers to undergo training, which would include a rudimentary knowledge of gun laws such as: 2) Require all gun owners to monitor their firearms inventory every 6 months and to report a missing weapon within 2 weeks of its discovery. 3) Require individuals selling firearms to conduct an online background check on every customer and to keep a record of each purchase for 7 years. It takes me about 10 or 15 minutes and costs about $20.00.

    I’m sure conservatives think this is a galling interference with their privacy. Better to just let 20,000 people die each year. We have to make sacrifices for our freedom, you know.
    https://www.washingtonpost.com/news/wonk/wp/2016/07/27/new-evidence-confirms-what-gun-rights-advocates-have-been-saying-for-a-long-time-about-crime/?utm_term=.57ac88492592
    https://www.thetrace.org/2016/01/unlicensed-gun-dealer-convicted/
    https://www.cbsnews.com/news/gun-sales-how-dangerous-people-get-weapons/

    While I agree that guns don’t kill people, people kill people, etc., the question which Conservatives ALWAYS fail to ask is, why is our murder rate so dramatically much higher than that of any other advanced nation? Liberals say it’s guns. What’s your answer? What’s the matter? Cat got your tongue?

    BTW, there is no law in Tennessee preventing a gun shop from selling a weapon or ammunition to an out of state resident. https://consumer.findlaw.com/consumer-transactions/private-gun-sale-laws-by-state.html

  12. BTW, Rincon, when you put in a lot of links WordPress requires me to moderate and approve the comment and sometimes I’m busy and don’t notice for a while. That’s why the comment may not appear as soon as you post.

  13. bc says:

    Truthfully I do not know what the answer is. According to the Chicago Tribune, last weekend in the City of Chicago at least 75 people were shot, 12 of whom did not survive. 40 of those shootings took place during a 7 hour period early Sunday. One of the bloodiest weekends ever in Chicago, cops and hospitals were overwhelmed. As of yesterday morning, not a single arrest had been made in any of these shootings. Shootings are actually down this year, but this shook up the city. There was a very large music festival downtown this weekend, with what happened in Vegas last year security was much tighter, perhaps drawing some of the normal police presence away from the south and west sides.

    General feeling is that loose laws in Indiana and other states feed this violence, hence the 60% statistic you show above. Some changes in gun laws around us may have a bit of an effect on supply and while some of your suggestions have merit I am not sure how you will enforce them.

    Always felt that the focus on guns is not the right focus. It is not gun violence, it is people violence. The focus needs to be on the people that commit this violence and the despair in some of these areas. Here in Chicago that violence is gang related and fueled by drugs and the money that comes with it. Money that comes from the destroyed lives of the addicts both in the south and west sides and from the burbs and more affluent parts of the city.

    Guns are only a symptom; the neighborhood I grew up in had enough small arms to outfit a brigade, and while yes that was in another time, the amount of arms in that neighborhood has not changed. The point is that this neighborhood was not awash in drugs and the people did not shoot each other for sport and still do not. This is true over much of the West and South and in rural areas of the rest of the country.

    I agree with some of what you say about combating gun running. However your comment about Tennessee is incorrect. I was in a sporting’s goods store that sells guns and FFL holders cannot sell to non residents. Your link refers to private sales, not between an FFL holder and yes, to own a gun in Illinois you must have a FOID card.

    According to the ATF, to buy a gun across state lines the gun must be shipped to a FFL dealer in the purchasers home state and then that FFL must do the background check. You can buy a gun from an unlicensed person in their own state.

    https://www.atf.gov/resource-center/docs/0813-firearms-top-12-qaspdf/download

  14. Bill says:

    Good commentary bc.

    You are right. Guns are not the problem. If guns were the problem countries like Switzerland would be awash in blood and places where the gun laws are strict (like Chicago and NYC) would be bloodless.

    It is not guns or the millions of lawful gun owners who are to blame either. Neither is the NRA the problem.

    It is always easier to have a scapegoat to blame things on and focus anger on. In addition to the example given in Leviticus, Sol Lewinsky and Adolph Hitler are examples of some who have advocated the use of scapegoats. immediately to mind That tactic of blaming a thing, a person or group of persons has been used forever. It is always the fault of someone or some thing. That way you can mobilize money and people with an object to scorn or blame.

    Regrettably, politicians, even Presidents find scapegoats.

    But, I digress. The subject is gun violence.

    So today, we read a lot of stuff that says lawful gun ownership should be restricted and an organization like he NRA that defends gun ownership should be silenced.

    Instead of focusing on guns, we need to start looking at what should or can be done to prevent future gun violence. To do so, it may be necessary to take a hard look at ways to correct and restrict those portions of our society that have no regard for the life or property of others. Whether because of corruption or ennui, We have permitted sociopathic gangs to grow like cancers in our inner cities to the point that parts of our cities are lawlessly dominated by gangs and the gang culture.

    The problem is not limited to cities. We need to look also at our mental health system and learn how to identify troubled individuals who may be potential killers before they act. Given our dedication to civil liberties, that is no small problem. In the recent case of the Parkland shooting, it would appear that there were innumerable warning signs but there was also abject failure to heed those warning signs or to act upon them effectively.

    To truly accomplish results would require time, money and the will to do something about the root causes of aberrant behavior.

    But to blame it all on guns is foolish. guns are not the cause. How can an inanimate object be a cause. The lunatic that drives their car into a crowded pedestrian sidewalk, the bomber, poisoner or the person who shoots up a church, concert goers or a theater, are the instruments of evil. They want to kill or harm and have just chosen different instruments to carry out their will.

    You are right b.c., tere are no easy answers. One thing we could do, however, is focus on the problem. We really haven’t done that. Maybe it is not our leaders who are at fault.

    Want to affix blame and find a new scapegoat?

    Let’s try the media.

    Instead of worrying about the appropriatness of what Melania Trump is wearing to board Air Force One or printing what the most recent insipid and self indulgent things that the Kardashians are saying or doing, perhaps our media could actually take up a worthwhile cause and focus on the inner city violence and on a growing problem of sociopathic
    violence within our Nation.

    If they do, we can hope that they focus on the vicious perpetrators and not characterize them as victims and prescribe the usual formula of pablum remedies.

    For a change, let us see some articles and coverage about the vast numbers of nameless, faceless men, women and children who have to live with this subset of a dysfunctional members of the inner city society. Let’s see some real anger directed towards perpetrators.

    Hell, someone might even win a Pulitzer.

  15. Rincon says:

    Really? You just repeated the same tired old line with no support, that guns don’t kill people, people kill people, although you did include a couple of timid suggestions, such as somehow assigning our media the task of solving the problem or identifying troubled individuals before they act, which, as you said, is very difficult at best. You danced all around it, but never answered my question. Let me phrase it differently in case it was misinterpreted: How does every other advanced country manage to have a far smaller murder rate while incarcerating only a fraction of the percentage of their populations as we do? They seem to have found the answer and Conservatives refuse to offer any alternative to the obvious factor that these countries have in common: More stringent laws regarding firearms.

    “The United States, with less than 5 percent of the world’s population, has about 35–50 percent of the world’s civilian-owned guns, according to a report by the Switzerland-based Small Arms Survey. It ranks number one in firearms per capita.” Coincidence? https://www.cfr.org/backgrounder/us-gun-policy-global-comparisons

    While I agree that this is not proof of causation, it should trigger a hypothesis in any rational mind.
    All of your defensive claims are moot if you cannot present a reasonably supported alternative hypothesis. Please, point me to a good article answering my question. If we can find other avenues that hold promise, I would be just as happy to pursue them. Something needs to be done and Conservative negativity is not helping.

  16. Bill says:

    Rincon, you are right. Guns kill people. Not people wielding guns.

    Cars kill people. Not the people driving the cars.

    Sorry for suggesting that it is not instrumentality but the user at fault. Shame on me for not realizing that it is not careless or malevolent people at fault rather than the inanimate objects that they use.

  17. Anonymous says:

    It’s amusing that conservatives chant the mantra they do about guns not being responsible for gun deaths.

    I wonder why they object to N. Korea (or any other country for that matter) developing nuclear weapons? I mean “obviously” it’s not “the gun” that kills people, it’s the people behind the guns…right?

    Seems to me that conservative “logic” would fight to the death to protect the “honorable” dictator from N. Koreas “right” to have any “gun” he could get instead of droning on about how we need to stop him.

    Maybe it’s me.

  18. Steve says:

    By your “logic” (Patric, or whatever you are) We need to prevent every single other country ever even thinking about arming themselves. After all, that is precisely what you want to do to all legal gun owners, make it impossible for anyone to ever even think about owning a gun.

    Conservatives do not believe in this twisted, illogical framing you push. Conservatives work to keep dangerous items out of the hands of crazy peeps…

    And the more you write, the more crazy you appear. You qualify for gun control!

  19. As for N. Korea, it is the nut with his hand on the button, not the nukes, just like nuts with guns.

  20. Rincon says:

    “After all, that is precisely what you want to do to all legal gun owners, make it impossible for anyone to ever even think about owning a gun” Putting words in his mouth, aren’t we? It seems to me that most people, including anonymous, agree that every nut case and felon should not be allowed to buy a gun. That’s not the case today. In Indiana for example, you don’t need a background check – or even an ID to purchase a raft of firearms. But Conservatives think that’s just fine.

    My main complaint remains. Conservatives are afraid to name any reason our country has a murder rate far higher than any other advanced nation (other than some pap about parents not raising their children very well, etc.) because they know that no matter what the cause, to fix it will require some action they define as liberal. Better to let tens of thousands die every year so far as Conservatives are concerned.

  21. Anonymous says:

    So Thomas keeping guns out of the hands of “nuts” is acceptable to you?

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