The Supreme Court’s Next Gun Battle

BY Herschel Smith
4 years, 8 months ago

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.


Comments

  1. On January 23, 2017 at 1:32 am, Frank_in_Spokane said:

    Saith Greenhouse, “most of these officials accept a stated desire for self-defense as good cause in and of itself … ”

    I have some friends still living in CA, as well as a few who’ve escaped. My impression has always been that most CA sheriffs DO NOT accept a stated desire for self-defense as good cause in and of itself.

  2. On January 23, 2017 at 11:02 am, Jack said:

    You’re right, Frank. As a recent escapee myself, I can tell you that the author was somewhat facetious in her statements.

    No sheriff of a major population center in CA approves of CCW — for any reason. Like San Diego, the other sheriffs have statements on their web site to the effect of ‘don’t ask for CCW, it’s not going to be approved, go away!” The only exception is Sacramento sheriff.

    Combined with the *total* ban (no exceptions) on open carry, there is no ability to carry outside the home.

    If SCOTUS doesn’t take up Peruta, there will be two separate laws – those in the 9th district, and those in the rest of the country.

  3. On January 23, 2017 at 12:19 pm, Sando182 said:

    When the en banc decision was made on Peruta, the Orange County Sheriff accepted “self defense” and nothing more as a good cause statement. It’s been two years since then and many CCW holders are coming up for renewal. They must show something more to justify their good cause than just “self defense” and even then it’s not alot. In my opinion, the OC Sheriff has been extraordinarily good towards CCW holders.

RSS feed for comments on this post. TrackBack URL

Leave a comment


You are currently reading "The Supreme Court’s Next Gun Battle", entry #16436 on The Captain's Journal.

This article is filed under the category(s) Gun Control and was published January 22nd, 2017 by Herschel Smith.

If you're interested in what else the The Captain's Journal has to say, you might try thumbing through the archives and visiting the main index, or; perhaps you would like to learn more about TCJ.

26th MEU (10)
Abu Muqawama (12)
ACOG (2)
ACOGs (1)
Afghan National Army (36)
Afghan National Police (17)
Afghanistan (703)
Afghanistan SOFA (4)
Agriculture in COIN (3)
AGW (1)
Air Force (36)
Air Power (9)
al Qaeda (83)
Ali al-Sistani (1)
America (21)
Ammunition (161)
Animals (112)
Ansar al Sunna (15)
Anthropology (3)
Antonin Scalia (1)
AR-15s (291)
Arghandab River Valley (1)
Arlington Cemetery (2)
Army (79)
Assassinations (2)
Assault Weapon Ban (27)
Australian Army (7)
Azerbaijan (4)
Backpacking (2)
Badr Organization (8)
Baitullah Mehsud (21)
Basra (17)
BATFE (120)
Battle of Bari Alai (2)
Battle of Wanat (18)
Battle Space Weight (3)
Bin Laden (7)
Blogroll (3)
Blogs (23)
Body Armor (20)
Books (3)
Border War (11)
Brady Campaign (1)
Britain (38)
British Army (35)
Camping (4)
Canada (3)
Castle Doctrine (1)
Caucasus (6)
CENTCOM (7)
Center For a New American Security (8)
Charity (3)
China (15)
Christmas (12)
CIA (28)
Civilian National Security Force (3)
Col. Gian Gentile (9)
Combat Outposts (3)
Combat Video (2)
Concerned Citizens (6)
Constabulary Actions (3)
Coolness Factor (3)
COP Keating (4)
Corruption in COIN (4)
Council on Foreign Relations (1)
Counterinsurgency (217)
DADT (2)
David Rohde (1)
Defense Contractors (2)
Department of Defense (185)
Department of Homeland Security (26)
Disaster Preparedness (4)
Distributed Operations (5)
Dogs (12)
Donald Trump (26)
Drone Campaign (3)
EFV (3)
Egypt (12)
El Salvador (1)
Embassy Security (1)
Enemy Spotters (1)
Expeditionary Warfare (17)
F-22 (2)
F-35 (1)
Fallujah (17)
Far East (3)
Fathers and Sons (2)
Favorite (1)
Fazlullah (3)
FBI (32)
Featured (186)
Federal Firearms Laws (18)
Financing the Taliban (2)
Firearms (1,394)
Football (1)
Force Projection (35)
Force Protection (4)
Force Transformation (1)
Foreign Policy (27)
Fukushima Reactor Accident (6)
Ganjgal (1)
Garmsir (1)
general (15)
General Amos (1)
General James Mattis (1)
General McChrystal (44)
General McKiernan (6)
General Rodriguez (3)
General Suleimani (9)
Georgia (19)
GITMO (2)
Google (1)
Gulbuddin Hekmatyar (1)
Gun Control (1,374)
Guns (1,896)
Guns In National Parks (3)
Haditha Roundup (10)
Haiti (2)
HAMAS (7)
Haqqani Network (9)
Hate Mail (8)
Hekmatyar (1)
Heroism (4)
Hezbollah (12)
High Capacity Magazines (16)
High Value Targets (9)
Homecoming (1)
Homeland Security (1)
Horses (1)
Humor (35)
ICOS (1)
IEDs (7)
Immigration (93)
India (10)
Infantry (4)
Information Warfare (2)
Infrastructure (2)
Intelligence (23)
Intelligence Bulletin (6)
Iran (170)
Iraq (379)
Iraq SOFA (23)
Islamic Facism (64)
Islamists (95)
Israel (18)
Jaish al Mahdi (21)
Jalalabad (1)
Japan (2)
Jihadists (80)
John Nagl (5)
Joint Intelligence Centers (1)
JRTN (1)
Kabul (1)
Kajaki Dam (1)
Kamdesh (9)
Kandahar (12)
Karachi (7)
Kashmir (2)
Khost Province (1)
Khyber (11)
Knife Blogging (4)
Korea (4)
Korengal Valley (3)
Kunar Province (20)
Kurdistan (3)
Language in COIN (5)
Language in Statecraft (1)
Language Interpreters (2)
Lashkar-e-Taiba (2)
Law Enforcement (4)
Lawfare (7)
Leadership (6)
Lebanon (6)
Leon Panetta (2)
Let Them Fight (2)
Libya (14)
Lines of Effort (3)
Littoral Combat (8)
Logistics (50)
Long Guns (1)
Lt. Col. Allen West (2)
Marine Corps (270)
Marines in Bakwa (1)
Marines in Helmand (67)
Marjah (4)
MEDEVAC (2)
Media (61)
Medical (73)
Memorial Day (6)
Mexican Cartels (35)
Mexico (51)
Michael Yon (6)
Micromanaging the Military (7)
Middle East (1)
Military Blogging (26)
Military Contractors (4)
Military Equipment (24)
Militia (5)
Mitt Romney (3)
Monetary Policy (1)
Moqtada al Sadr (2)
Mosul (4)
Mountains (25)
MRAPs (1)
Mullah Baradar (1)
Mullah Fazlullah (1)
Mullah Omar (3)
Musa Qala (4)
Music (23)
Muslim Brotherhood (6)
Nation Building (2)
National Internet IDs (1)
National Rifle Association (73)
NATO (15)
Navy (23)
Navy Corpsman (1)
NCOs (3)
News (1)
NGOs (2)
Nicholas Schmidle (2)
Now Zad (19)
NSA (3)
NSA James L. Jones (6)
Nuclear (58)
Nuristan (8)
Obama Administration (221)
Offshore Balancing (1)
Operation Alljah (7)
Operation Khanjar (14)
Ossetia (7)
Pakistan (165)
Paktya Province (1)
Palestine (5)
Patriotism (7)
Patrolling (1)
Pech River Valley (11)
Personal (66)
Petraeus (14)
Pictures (1)
Piracy (13)
Pistol (2)
Pizzagate (21)
Police (538)
Police in COIN (3)
Policy (15)
Politics (890)
Poppy (2)
PPEs (1)
Prisons in Counterinsurgency (12)
Project Gunrunner (20)
PRTs (1)
Qatar (1)
Quadrennial Defense Review (2)
Quds Force (13)
Quetta Shura (1)
RAND (3)
Recommended Reading (14)
Refueling Tanker (1)
Religion (241)
Religion and Insurgency (19)
Reuters (1)
Rick Perry (4)
Rifles (1)
Roads (4)
Rolling Stone (1)
Ron Paul (1)
ROTC (1)
Rules of Engagement (75)
Rumsfeld (1)
Russia (32)
Sabbatical (1)
Sangin (1)
Saqlawiyah (1)
Satellite Patrols (2)
Saudi Arabia (4)
Scenes from Iraq (1)
Second Amendment (430)
Second Amendment Quick Hits (2)
Secretary Gates (9)
Sharia Law (3)
Shura Ittehad-ul-Mujahiden (1)
SIIC (2)
Sirajuddin Haqqani (1)
Small Wars (72)
Snipers (9)
Sniveling Lackeys (2)
Soft Power (4)
Somalia (8)
Sons of Afghanistan (1)
Sons of Iraq (2)
Special Forces (28)
Squad Rushes (1)
State Department (22)
Statistics (1)
Sunni Insurgency (10)
Support to Infantry Ratio (1)
Supreme Court (30)
Survival (53)
SWAT Raids (55)
Syria (38)
Tactical Drills (2)
Tactical Gear (6)
Taliban (168)
Taliban Massing of Forces (4)
Tarmiyah (1)
TBI (1)
Technology (17)
Tehrik-i-Taliban (78)
Terrain in Combat (1)
Terrorism (95)
Thanksgiving (10)
The Anbar Narrative (23)
The Art of War (5)
The Fallen (1)
The Long War (20)
The Surge (3)
The Wounded (13)
Thomas Barnett (1)
Transnational Insurgencies (5)
Tribes (5)
TSA (22)
TSA Ineptitude (13)
TTPs (4)
U.S. Border Patrol (5)
U.S. Border Security (14)
U.S. Sovereignty (17)
UAVs (2)
UBL (4)
Ukraine (3)
Uncategorized (58)
Universal Background Check (3)
Unrestricted Warfare (4)
USS Iwo Jima (2)
USS San Antonio (1)
Uzbekistan (1)
V-22 Osprey (4)
Veterans (3)
Vietnam (1)
War & Warfare (315)
War & Warfare (40)
War Movies (4)
War Reporting (21)
Wardak Province (1)
Warriors (6)
Waziristan (1)
Weapons and Tactics (73)
West Point (1)
Winter Operations (1)
Women in Combat (21)
WTF? (1)
Yemen (1)

September 2021
August 2021
July 2021
June 2021
May 2021
April 2021
March 2021
February 2021
January 2021
December 2020
November 2020
October 2020
September 2020
August 2020
July 2020
June 2020
May 2020
April 2020
March 2020
February 2020
January 2020
December 2019
November 2019
October 2019
September 2019
August 2019
July 2019
June 2019
May 2019
April 2019
March 2019
February 2019
January 2019
December 2018
November 2018
October 2018
September 2018
August 2018
July 2018
June 2018
May 2018
April 2018
March 2018
February 2018
January 2018
December 2017
November 2017
October 2017
September 2017
August 2017
July 2017
June 2017
May 2017
April 2017
March 2017
February 2017
January 2017
December 2016
November 2016
October 2016
September 2016
August 2016
July 2016
June 2016
May 2016
April 2016
March 2016
February 2016
January 2016
December 2015
November 2015
October 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015
December 2014
November 2014
October 2014
September 2014
August 2014
July 2014
June 2014
May 2014
April 2014
March 2014
February 2014
January 2014
December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
February 2013
January 2013
December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012
December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011
December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010
December 2009
November 2009
October 2009
September 2009
August 2009
July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006

about · archives · contact · register

Copyright © 2006-2021 Captain's Journal. All rights reserved.