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A Changing Federal Judiciary Offers Hope, but There’s Still Work to be Done

Wednesday, September 26, 2018

A Changing Federal Judiciary Offers Hope, but There’s Still Work to be Done

Since the landmark rulings in District of Columbia v. Heller and McDonald v. Chicago recognized an individual right to keep and bear arms, anti-gun state and local lawmakers have preserved existing unconstitutional schemes and continued to probe the outer reaches of their authority to restrict firearms. Enjoying the tacit or explicit approval of some federal courts, this legislative adventurism has often gone unchecked.

Frustrated gun owners are in good company. In June 2015, U.S. Supreme Court Justice Clarence Thomas wrote, “Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts … have failed to protect it.” Later that year, Justice Samuel Alito took the federal courts of appeals to task for what he termed “noncompliance with our Second Amendment precedents.”

Sadly, these public admonishments have done little to curb lower court obstinacy.

In April, U.S. District Court for the District of Massachusetts Judge William G. Young upheld Massachusetts Attorney General Maura Healey’s unlawful interpretation of state law that resulted in a ban on commonly owned semi-automatic firearms. The judge ridiculously contended that the late Justice Antonin Scalia “would be proud” of the Bay State’s restriction. Young came to his strident conclusion despite the fact that Scalia joined a 2015 dissent from denial of certiorari in Friedman v. Highland Park, where Thomas made clear that the right to possess semi-automatic rifles is protected by the Second Amendment under Heller.

And in August, the 9th Circuit Court of Appeals upheld California’s Unsafe Handgun Act, which requires that all new models of handguns sold in the state after 2013 contain microstamping technology. The idea behind microstamping is that it will imprint a microscopic identifying code in two separate places on spent cartridge casings. The reality, however, is that this technology does not exist.

No matter. Despite Heller’s determination that the Second Amendment protects possession of those firearms “in common use for lawful purposes,” a panel of the 9th Circuit upheld the microstamping provision.

Control of the Senate is at stake in this November’s elections. If anti-gun lawmakers take the majority, they could obstruct all of Trump’s judicial nominations.

Thanks to President Donald Trump’s judicial nominees, however, there are reasons for hope.

Trump, Senate Majority Leader Mitch McConnell, R-KY., and Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, are intent on placing jurists that respect our Constitution on the federal bench. As of mid-July, Trump had successfully appointed 43 judges to the federal courts. The Pew Research Center says Trump’s 22 appeals court judges were the most of any recent president at that point in their first term.

Moreover, there is significant room for growth. As of early August, there were 151 vacancies throughout the federal courts and 84 nominations pending.

And, in nominating Judge Brett Kavanaugh to the U.S. Supreme Court, Trump has chosen a jurist with an impressive pro-Second Amendment record. In 2011, Kavanaugh employed a careful reading of Heller to determine that the District of Columbia’s ban on commonly owned semi-automatic rifles and registration regime were unconstitutional.

The nomination of a judge willing to faithfully apply the Supreme Court’s Second Amendment precedent has sent gun control advocates into a meltdown, as they fear their days of exploiting a lethargic federal judiciary could be coming to an end.

Michael Bloomberg’s Everytown for Gun Safety wailed that Kavanaugh’s respect for Heller is “dangerous.” Brady Campaign Co-President Avery Gardiner said the nomination was “pretty scary” for anti-gun advocates.

Sen. Cory Booker, D-N.J., has framed the nomination debate in moralistic terms. Two weeks after attacking Kavanaugh for his fidelity to the Second Amendment, the senator declared at a press conference that those who do not oppose the nominee are “complicit in the evil.”

Gun owners must resist taking the opposition’s hysterics as a sign of total victory, as there is still much work to be done. Control of the Senate is at stake in this November’s elections. If anti-gun lawmakers take the majority, they could obstruct all of Trump’s judicial nominations. Moreover, our opponents are sparing no expense or tactic in their attempt to stop Kavanaugh’s confirmation.

In order to continue the important progress in securing a federal judiciary that respects the Second Amendment, gun owners must contact their senators to urge their support for Kavanaugh, vote for pro-gun candidates on Nov. 6, and mobilize like-minded friends and family members to do the same. Even given the promising signs, it will require relentless determination and effort to secure consistent respect for our Second Amendment rights.


"Originally appeared in the August 2018 National Rifle Association Official Journal magazines" 

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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.