Linda Greenhouse at The New York Times:
It will be late February at the earliest before the justices announce whether they will hear the case, Peruta v. California, filed on behalf of five California gun owners and a gun-rights organization by Paul D. Clement, a solicitor general during the George W. Bush administration who since then has taken on a number of high-visibility conservative causes. The mere fact that the appeal is pending is bound to play a role during the confirmation hearings for the next Supreme Court nominee; during the campaign, President-elect Donald J. Trump called on “Second Amendment people” to vote for him as a bloc to prevent a President Hillary Clinton from being able to fill the Supreme Court vacancy with a justice opposed to gun interests.
With minor exceptions, California bans the open carrying of firearms. State law allows the concealed carrying of a loaded handgun by those who pass a background check, take a training course, and demonstrate to their local sheriff or police chief that they have “good cause.” The definition of “good cause” is left up to the local law enforcement officials authorized to issue the licenses. While most of these officials accept a stated desire for self-defense as good cause in and of itself, the sheriff of San Diego County has set a higher threshold. An applicant there must prove a particular need for carrying the concealed gun, like a documented threat or having obtained a restraining order against a specific individual. Under this standard, the sheriff’s office denies most applications.
Significantly, in ruling against the plaintiffs last June by a vote of 7 to 4, the United States Court of Appeals for the Ninth Circuit didn’t actually answer that question. That fact may deter the Supreme Court from hearing the appeal — or, depending on the justices’ appetite for a major gun case, it may prove irrelevant. The justices have the power to frame just about any question they want to answer. If they want to decide the core question of whether the Second Amendment gives the right to carry a gun, in some manner, any manner, outside the home — which is to say, if four justices think they can count on an eventual fifth vote for that proposition, then this will be the case to grant.
Farther down in the opinion piece, she cites Scalia’s position on the second amendment, viz. “the right secured by the Second Amendment is not unlimited …”
Ms. Greenhouse is a lecturer at Yale Law School, and she has the same reflexive instincts as, unfortunately, Justice Scalia, and most certainly any progressive law graduate, prosecutor or judge. Even Justice Scalia couldn’t extricate himself from the notion that the constitution “secures” rights.
We’ve addressed this before. All of life, from marriage, to work, family, church and state, is the covenant. Without understanding life within the framework of covenant, one cannot understand it at all. The constitution, including the second amendment, is a covenant. It contains a set of stipulations within which we have agreed to live, and while success in following them brings blessings and peace, failure to honor them brings curses and conflict.
The founders understood this well, and Dave Kopel has done marvelous work in showing that gun control was one of the main catalysts of the war of independence. The founders looked to something other than King George for a definition of their rights. Our rights come from our creator, and more specifically, the second amendment is a recognition and codification of not only the right, but moral duty of self defense and defense of family.
The right to bear arms isn’t secured by the government, and the extent to which the government attempts to bar the exercise of moral rights and duties will be proportional to the conflict it spawns. And yet we also attempt to peaceably resolve our differences and persuade the parties to honor the covenant that is supposed to govern our actions because we wish to be slow to conflict.
In this instance, Peruta may not be ripe. We need a replacement for Scalia first, and even then I don’t know how Kennedy would vote. He joined Heller, but Heller was a weak decision and Kennedy may not go along with increased recognition of the right of self defense. It will be interesting to watch this case, but what would be worse than never getting a hearing in front of the Supreme Court would be to get a bad decision that actually denies the right to self defense outside the home.
In either case, when it comes to recognition of fundamental rights and duties, men cannot be patient forever. The covenant looms large, and there are curses for causing its wreckage.