Let me share with you what I think will be the next federal lawsuit related to the Second Amendment. It will test the constitutionality of state handgun carry permits. The legal argument is creative but not far-fetched. What the U.S. Supreme Court will eventually do when the case comes before it is anybody’s guess. If the Court draws its writing pen faster than the NRA can pull the trigger on the Court’s judicial powers, it’s over for gun owners!
The argument rests on the new constitutional jurisprudence articulated by Justice Kennedy in Obergefell last summer. Here are the key quotes from Obergefell that support the effort to ban handgun carry permits:
- “The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.”
- “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
- “When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”
The constitutional text at issue in the case is the Fourth Amendment, which provides “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
Notice the words “secure in their persons.”
The argument is that the “legal strictures” we’ve “received” regarding the “bearing” of arms was based on a different type of society and that that “stricture” is now causing “discord” between one individual’s “right to keep and bear arms” and another person’s right to be “secure in their person.”
Using Justice Kennedy’s legal reasoning, the argument is that, even as we have come to “learn” a new “meaning” for marriage, we are now “learning” the central meaning of what it means to be “secure in our person” in a society that is increasingly violent and in which guns, easily acquired and concealed, are being used to shoot people in movie theaters, on college campuses, and at community centers. It is not enough to be safe from “searches and seizures;” we must be safe in public places as well.
The argument is that there is a new fundamental right to be secure in one’s person in public places. And given the growing “discord” between this new right and the right to keep and bear arms, the fear is that the federal court will try to strike a compromise between the two.
The gun control advocates rely on the fact that the Fourth Amendment puts an emphasis on the home: “The right of the people to be secure in their . . . houses, papers, and effects, against unreasonable searches and seizures.” In other words, they argue, the right to keep and bear arms is paramount within one’s “house,” where one’s person, papers, and effects must be “secure.” For them, the right to bear arms outside the home is secondary, where modern-day law enforcement supposedly can protect you if people are not armed with guns.
Therefore, the constitutional emphasis in the phrase “the right to keep and bear arms” should be on the word “keep” rather than “bear.” By doing so, the Court can hold handgun carry permits unconstitutional and resolve the “discord” created by the new right to personal security in public places and the Fourth Amendment’s two-pronged rights—the evolving right to personal security in public places and the textual right to personal security in one’s home.
It is a creative argument, but at least this one has some text in the Constitution that its advocates can be pointed to, whereas there was no text in the Constitution to support the Obergefell Court’s “newly found” right to marry. Those who said they didn’t care about Obergefell because they didn’t care about who married whom may find themselves the next victim of the Court’s liberal majority.
It will soon be time1 for another shoot out at the Supreme Court corral, and if the NRA members don’t strap on their legal arguments against Obergefell and start shooting, they’ll just be another notch in the Court’s holster of conservatives they’ve taken down.
- Like a previous week’s commentary about the income tax, there is no lawsuit presently pending asserting this new right. But, again, if I can figure out the argument, you know that the high-priced lawyers for gun control advocates can. I confess, I find a measure of pleasure in helping those who say they don’t care about marriage wake up to what the Obergefell Court really did. However, do not read this commentary as saying I like the argument or that I hope it “wins.” I’m just saying Obergefell opened the door to a whole lot more than same-sex “marriage.”
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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