Clarence Thomas calls the Second Amendment the Supreme Court’s “constitutional orphan,” lamenting that it is “a disfavored right in this court.” Sadly, the orphan could get neglected again this term.
On Monday, Dec. 2, the Supreme Court heard the case New York State Rifle & Pistol Association v. City of New York. An extremely restrictive New York state law barred some licensed gun owners from transporting their firearms outside of their homes except to specific gun ranges. This meant they couldn’t take their gun to a second home upstate if they wanted to do so to protect their family while traveling.
The state of New York rescinded the law, probably because it would have been overturned, and has begged the Supreme Court to declare the case “moot,” lest the justices issue a sweeping ruling on the constitutional merits. Based on reports from Monday’s oral arguments, it seems that the justices might buy this argument. The justices on the left all made it plain that they thought there was no case left to consider.
But if ever there was a fundamental right that deserved extraordinary protection from extraordinary assaults, it is the right to bear arms today. Democrats are crystal clear that they would repeal the Second Amendment if they got the chance. But until they get that chance, they will trample it and restrict it with whatever ruses they can dream up, even to the point of confiscating guns.
If the court agrees that the current case is moot, it should quickly take up several additional Second Amendment cases so that it can establish clearer limits on what states may not do to limit this high-ranking freedom in the Bill of Rights. Blue states across the country are passing sweeping gun control measures and enacting unprecedented restrictions on the right to bear arms. The Supreme Court neglects its duty by failing to examine their dubious constitutionality.
For instance, many blue states such as California, Hawaii, Illinois, and Washington have passed strict laws outlawing the purchase and/or possession of firearms by adults under 21 years old. Given that the Supreme Court ruled in the landmark 2008 case District of Columbia v. Heller that there is an individual constitutional right to bear arms in self-defense, it seems unlikely that such an age restriction would pass constitutional muster, for it strips legal adults of their rights arbitrarily.
It is obvious, surely, that the Constitution would not permit lawmakers to restrict free speech to people over the age of 25 (although, in our more curmudgeonly moments, we might be tempted to support that one). Nor would it allow a bill restricting freedom of religion to people of a specified age. The Supreme Court should, therefore, turn its attention to age-based revocations of gun rights and declare them unconstitutional.
So, too, the justices ought to examine the constitutionality of so-called “assault-weapons” bans that Democrat-controlled state legislatures are passing. These rely on concocted and random definitions of what constitutes an “assault weapon,” banning some guns, but not others, for the cosmetic reason that some look scarier than others. Such arbitrary standards put states on weak legal footing. The court should also scrutinize how banning some of the most popular and effective weapons in the country, such as the AR-15, could possibly not infringe upon the right to self-defense laid out in Heller.
Red flag laws and gun violence restraining orders should also be reviewed by the high court. The idea behind such laws has merit, for they are intended to keep firearms out of the hands of people liable to use them in mass murders. Certainly, we need to do a better job stopping such killers, who often make their intentions known well in advance. But it’s the job of the Supreme Court to ensure that well-intentioned lawmakers don’t set aside constitutional liberties, and some of these laws, as written, may undermine due process.
So long as justices fail to pay the Second Amendment proper attention, it will continue to be, as Thomas says, a “disfavored right.” It should not be. The very fact that the right to bear arms was listed second only to the right to free speech shows how fundamental it is to the polity created by our founding principles and documents. The Supreme Court should not turn a blind eye to the protection of this right.
