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Second Amendment as Second-Class Right? A Dismal Warning

Friday, March 4, 2016

Second Amendment as Second-Class Right? A Dismal Warning

A case involving the scope of firearm prohibitions prompted Supreme Court Justice Clarence Thomas to break his more than decade-long silent streak on the bench. Justice Thomas last asked a question in February 2006, but he made headlines on February 29 by asking a question during oral argument in the case of Voisine v. United States. Unfortunately, commentators seized on the fact that he spoke at all, rather than the troubling implications of what he had to say.

The Voisine case arises out of the prohibition in the Gun Control Act, 18 U.S.C. §922(g)(9), which prohibits those convicted of a “misdemeanor crime of domestic violence,” as that offense is defined, from possession of firearms and ammunition.

The defendants in Voisine had been convicted of domestic violence under Maine’s simple assault statute, which defines “assault” as including “intentionally, knowingly, or recklessly caus[ing] bodily injury or offensive physical contact” to another person. Neither had used a firearm or weapon of any kind in committing the offense. The question before the Court is the scope of the federal definition and whether it extends to misdemeanors which include reckless conduct as well as more deliberate conduct where there is an intent to harm. (Under that formulation, for example, an individual who injures a family member while recklessly driving could commit a qualifying domestic violence offense, potentially resulting in a permanent ban on firearm possession.)

As Assistant U.S. Solicitor General Ilana Eisenstein was winding up her argument in support of the expansive interpretation, Justice Thomas interjected to ask that she identify another “constitutional right that can be suspended based upon a misdemeanor violation of a State law.” While she struggled to conceive of a responsive example, Justice Thomas persisted in his line of questions, noting, “[Y]ou’re saying that recklessness is sufficient to trigger a … misdemeanor violation of domestic conduct that results in a lifetime ban on possession of a gun, which, at least as of now, is still a constitutional right.”

Apart from being a stark reminder that the Court today is not what it was four weeks ago before Justice Antonin Scalia’s untimely death, this signals just how close the Court may be to undermining the Second Amendment interpretation offered in District of Columbia v. Heller in 2008. Only four of the current eight justices joined the late Justice Scalia’s majority opinion in Heller, recognizing that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Since then, several lower courts have chipped away at or ignored Heller’s fundamental premise.

Justice Thomas had previously warned of this slide towards what he called “relegating the Second Amendment to a second-class right,” in his dissent over the Supreme Court’s refusal to hear the “assault weapons” ban case, Friedman v. City of Highland Park. Joined by Justice Scalia, he observed that the “Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions.”

As we pointed out in an earlier alert, given these numbers, “future appointments to the Court will determine whether Heller is overturned, limited to nothing more than the possession of a handgun for protection within the home, or expanded to expressly protect the right to keep and bear all arms that are necessary for the entire range of defensive purposes, as the Framers of the Bill of Rights intended.”

The decision in the Voisine case is pending. So is the future of the Second Amendment.

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News  

Monday, April 24, 2017

Lawsuit Filed Against California's Assault Weapons Control Act

The National Rifle Association Institute for Legislative Action (NRA-ILA) today announced it is supporting, along with the California Rifle and Pistol Association (CRPA), an important Second Amendment lawsuit challenging California’s newly expanded Assault Weapons Control ...

Illinois: Senate Passes Legislation that will Close Gun Stores

Thursday, April 27, 2017

Illinois: Senate Passes Legislation that will Close Gun Stores

Today, the Illinois Senate passed an amended version of Senate Bill 1657 by a 30-21 vote.  As amended, SB 1657 would exempt big box stores from its restrictions.

Brace Yourself: ATF Reconsiders Obama-Era Policy on Stabilizing Braces

News  

Gun Laws  

Tuesday, April 25, 2017

Brace Yourself: ATF Reconsiders Obama-Era Policy on Stabilizing Braces

News broke this week that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has reconsidered and “clarified” its Jan. 6, 2015 Open Letter on the use of stabilizing braces as shoulder stocks.

West Virginia: Governor Signs Pro-Gun Bills into Law

Thursday, April 27, 2017

West Virginia: Governor Signs Pro-Gun Bills into Law

Late yesterday, Governor Jim Justice signed two important pro-gun bills into law.

“F” Stands for Fail: School Jeopardizes Student’s Future for Possession of Squirt Gun

News  

Second Amendment  

Friday, April 21, 2017

“F” Stands for Fail: School Jeopardizes Student’s Future for Possession of Squirt Gun

Public education’s long-running “zero tolerance” war against anything that suggests the idea of a firearm (including, for example, clothing, gestures, toys, food, computer images, and favorable opinions of self-defense) has claimed another victim. This time ...

Illinois: Anti-Gun Legislators are Attempting to Sneak their Agenda into Unrelated Legislation

Tuesday, April 25, 2017

Illinois: Anti-Gun Legislators are Attempting to Sneak their Agenda into Unrelated Legislation

Yesterday, Illinois Senate President John Cullerton proposed Senate Amendment 1 to his shell bill, Senate Bill 233.

South Carolina: Senate Subcommittee to Hear Multiple Gun Bills Tomorrow

Monday, April 24, 2017

South Carolina: Senate Subcommittee to Hear Multiple Gun Bills Tomorrow

Tomorrow, a subcommittee of the Senate Judiciary Committee will hold a hearing to discuss several firearm-related bills, and subcommittee members need to hear from you.

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

California: Open Carry Ban Passes in the Assembly

Friday, April 21, 2017

California: Open Carry Ban Passes in the Assembly

Yesterday, the state Assembly passed Assembly Bill 7 by a vote of 44 to 29.   AB 424 was not considered during yesterday’s floor session, however it remains eligible for a vote at any time.  

Rhode Island:  House Committee Will Hear Over a Dozen Gun Bills Tuesday Night

Monday, April 24, 2017

Rhode Island: House Committee Will Hear Over a Dozen Gun Bills Tuesday Night

On Tuesday, April 24, the House Judiciary Committee will hold a marathon hearing on several anti-gun bills.

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NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.