Judge’s Opinions

Your Gun Is None of the Government’s Business

No sooner had the Supreme Court released its decision last month recognizing the personal right to carry a handgun outside the home than the big-government politicians began to resist the court’s holding. None was more anti-Constitution than New York Gov. Kathy Hochul, who told the court that “New York is ready for you.”


I understand that politicians often say and do things that they inwardly know are unconstitutional or unlawful in order to please their political bases, but vaguely threatening the Supreme Court over a fundamental liberty is an offense to the Constitution.


Here is the backstory.
Until the early 1930s, gun regulation in America was tepid at best. You signed up; you bought a gun; you told the authorities you wanted to carry it; they gave you a permit; you were registered with the state in which you lived. No bureaucrat made a subjective judgment as to your moral worth to own and carry a gun. The language of the Second Amendment was interpreted to mean that law-abiding persons could own and carry a registered handgun.


Then along came Miller. Miller was a federal case in which the defendant was arrested for carrying a gun across state lines that had a barrel that was too short. Miller had lawfully purchased a rifle and then shortened the barrel, thus creating what was commonly called a sawed-off shotgun. During the Prohibition era, Congress criminalized transporting them across state lines. These weapons were lawful to own and use in most states, but not to transport from one state to another.


Congress enacted this law pursuant to an absurdly expansive reading of the Constitution’s Commerce Clause, which permits Congress to regulate interstate commerce. I call this reading absurdly expansive because during this same time in history — the 1930s — the Supreme Court interpreted that clause so as to enable Congress to regulate anything that affected interstate commerce — even if the activities being regulated were not commercial and even if they remained in one state. The court also interpreted the clause to permit Congress to ban any item from interstate commerce.


When James Madison crafted the language in the Constitution that gave Congress this power, he understood “to regulate” as meaning “to keep regular.” That was the general public understanding at the time, as the use of tariffs and monopolies by state legislatures to reward their patrons during the Articles of Confederation period had brought interstate commerce nearly to a halt.


The statute that Miller violated and for which he was convicted was not based on the Second Amendment but on a big-government, grossly misleading reading of the Commerce Clause. Miller himself was represented by a series of lawyers, none of whom was paid and all of whom deserted him after filing an appeal at the Supreme Court.


When the court heard oral argument — this is inconceivable today — it had only the government’s briefs before it and only government lawyers in the courtroom. It is no surprise that the Supreme Court of the United States, hearing only the government’s side of a case, ruled that the Second Amendment does not confer or protect a personal right to own or carry a gun, but does so only for state militias, today called the National Guard.


This ruling unleashed a flood of state regulations that varied from only the police can own and carry a gun to any adult can do so.


In 2008, the Supreme Court overruled Miller and held that the Second Amendment protects the individual personal right to keep and carry a gun in the home. The opinion by the late Justice Antonin Scalia recognized that the right to keep and bear arms is a fundamental right and a modern extension of the ancient right to self-defense.


When I asked Justice Scalia why he didn’t characterize the right as “natural,” he replied that the phrase “natural right” sounded too Catholic for some remembers of the court, and that “fundamental” and “ancient” taken together mean the same as “natural.”


Last month, the court held that the Second Amendment protects the right of law-abiding persons to carry guns outside the home because that right is an American tradition that was recognized widely as fundamental in 1791, when the amendment was ratified. Like the First, the Second Amendment does not grant liberty; it restrains the government from interfering with it. Justice Clarence Thomas wrote that the Second Amendment does not protect second-class rights and that the right to keep and bear arms is as well enshrined and protected as the freedom of speech.


In a bizarre concurrence, Justice Brett Kavanaugh writing for himself alone (thanks be to God) wrote that nothing in the majority opinion prohibits the states from requiring registration of weapons that folks carry. It is hard to believe that Justice Kavanaugh read the majority opinion to which he consented. If the Second Amendment protects the same category of rights — fundamental — as the First Amendment does, then the government can no more require registration of our guns than it can require registration of our books.


Now back to Gov. Hochul and her unconstitutional legislation in New York. That law, enacted with no debate and just days after the right to carry opinion came down, limits carry permits to persons of “good moral character,” a phrase that is undefinable. The government lies, cheats, steals and kills, and it thinks it can determine “good moral character”! The New York law also requires the submission of social media accounts from the past three years for bureaucratic approval before a carry permit may be issued. New York is attacking the First Amendment as well as the Second.


Gov. Hochul took an oath to defend the Constitution. Why do we repose the Constitution for safekeeping into the hands of those who pervert it?


COPYRIGHT 2022 ANDREW P. NAPOLITANO
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