Second Amendment Roundup: Supreme Court Relists Two Cases

Citizens are ultimately responsible for their own security.

The Supreme Court has relisted two Second Amendment cases for its conference on Friday January 17.  They include Snope v. Brown, which concerns whether Maryland may ban semiautomatic rifles that are in common use for lawful purposes, and Ocean State Tactical v. Rhode Island, which asks whether a confiscatory ban on the possession of magazines that are in common use violates the Second Amendment.  Last Friday, when it relisted these cases, the Court denied certiorari in two other Second Amendment petitions (see my posts on all four of the cases here and here).

The courts of appeals in the above two relisted cases held that no one "needs" the banned rifles and magazines that Americans nationwide choose.  They rely on the false premise that the government will be there to protect them.

Recent mass tragedies reaffirm how inapt or incapable the government may be to protect lives.  They are wakeup calls for why Second Amendment rights are so fundamental.  It's been said time and again, but citizens really are their own first responders.

The Los Angeles wildfires have left thousands homeless.  California law doesn't make looting during an emergency a felony.  To date, some 50 looters have been arrested, and some district attorneys are advocating for changes to California's current laws, but this is too little too late for the thousands of Americans rendered homeless.  For those residents whose homes are still standing, they may have to rely on their own firearms to defend against the plundering.  Given the extent of the devastation, it's unrealistic to think that the police will be able to timely respond (if at all) to a 911 call about a potential burglary.

When it comes to police protection from human violence, New Orleans proudly declared large areas including Bourbon Street a gun-free zone but neglected to erect the bollards that may have prevented the ISIS terrorist from running over dozens of people, killing 14.  That occurred early on New Years' Day.

The same day in New York City, there were three separate stabbings on the subways.  The day before, a man was pushed onto the subway tracks.  The week before, a man was stabbed to death during an attempted robbery, and a woman was burned to death while sleeping on the train.  All told, 579 felony assaults were reported on the NYC subway in 2024.

Not to worry, the New York Penal Law declares the subway (and countless other places) a "sensitive location" and makes it a felony to possess a firearm in such places, even by a person with a carry permit.  That law was passed in reaction to, and to nullify, the Supreme Court's Bruen decision, which held that New York's restrictions on the issuance of carry permits violate the Second Amendment.  Permits had been limited to the rich and the powerful as well as those who paid bribes to the NYC License Division.

Remember when the entire NYC police department was mobilized to arrest the citizen who dared use a firearm to defend himself from robbers on the subway?  Routine murders didn't matter much, but no stops were pulled when it came to apprehending the likes of Bernard Goetz, the bespeckled nerd, aka "Subway Vigilante," who shot four armed robbers when they attacked him.  The tradition of prosecuting those who defend themselves or threatened victims continues with the now-defunct homicide charges against the bodega clerk Jose Alba and the Good Samaritan Daniel Penny.

It's worth recalling some of the remarks of the Justices in the oral argument in Bruen.  Chief Justice John Roberts stated that "if the purpose of the Second Amendment is to allow people to protect themselves, that's implicated when you're in a high-crime area."  Justice Samuel Alito was more specific:

So I want you to think about people like this, people who work late at night in Manhattan, it might be somebody who cleans offices, it might be a doorman at an apartment, it might be a nurse or an orderly, it might be somebody who washes dishes. None of these people has a criminal record. They're all law-abiding citizens. They get off work around midnight, maybe even after midnight. They have to commute home by subway, maybe by bus. When they arrive at the subway station or the bus stop, they have to walk some distance through a high-crime area, and they apply for a license, and they say: Look, nobody has told – has said I am going to mug you next Thursday. However, there have been a lot of muggings in this area, and I am scared to death. They do not get licenses, is that right?

New York's lawyer confirmed that, no, "if there's nothing particular to them," they don't get carry licenses.  Justice Alito responded, "all these people with illegal guns, they're on the subway … they're walking around the streets, but the ordinary hard-working, law-abiding people I mentioned, no, they can't be armed?"

These comments by the Justices recall criminal justice reformer Cesare Beccaria's truisms in Crimes and Punishments (1764), "The laws that forbid the carrying of arms … disarm those only who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."  As documented in my book The Right to Bear Arms and discussed in greater detail in Mark W. Smith's article Enlightenment Thinker Cesare Beccaria and His Influence on the Founders, Beccaria was highly influential to our Founders like John Adams and Thomas Jefferson.

*  *  *

I'd like to make a correction to my recent post on Colorado's SB 3, which would ban transfer of semiauto rifles, gas-operated semiauto handguns, and semiauto shotguns if they use detachable magazines.  I misidentified the Remington 870 DM as in the last category, but it is a pump.  A correct example would be the SAS-12 semiauto shotgun which uses a 3-round detachable magazine.

Comments

[Noscitur a sociis]

The Los Angeles wildfires have left thousands homeless. California law doesn't make looting during an emergency a felony. To date, some 50 looters have been arrested, and some district attorneys are advocating for changes to California's current laws, but this is too little too late for the thousands of Americans rendered homeless. For those residents whose homes are still standing, they may have to rely on their own firearms to defend against the plundering.

I apologize if I’m missing something obvious, but I’m having trouble seeing a connection between any of the ideas being presented here.

1. The looting crime you link to applies an enhanced (but not felony-level) punishment for second degree burglary committed during an emergency. It thus wouldn’t seem to have any effect on people who are homeless and not living in a building.

2. Looting an occupied residence (and I’m not sure how you’d use a gun to defend it if you weren’t occupying it) is first degree burglary, which is a felony.

[Absaroka]

I really hope the SC takes the cases, and draws some lines. I care less about where the lines are drawn than that we get some unambiguous ones drawn. We're at three decades of arguing about bayonet lugs and finned grips.

[DixieTune]

Not as long as Catholic pussies like John Roberts and Brett Kavanagh and racial liberals like Amy Barrett are on the court.

[A Japanese Student]

I always wondered why the Constitution protects the right to keep and bear arms, aside from the textual argument. Pre-Heller jurisprudence seemed more consistent.

First, the Constitution protects the people from the government. It does not protect the people from criminals. (This is the holding in DeShaney and Gonzales.) Whatever harm might result from those burglars, it is not the direct subject of the Amendment. Thus I find it questionable to focus on violent crimes.

Second, the Amendment protects the right to keep and bear arms, but notably does not mention the right to use arms. I doubt it was the situation where a right was so obvious that they didn't think it would need to be enumerated. If the Government can regulate the use of firearms, they should be able to regulate firearms so that only those suitable for lawful use can be possessed, at least in cases where the defendant intends to use the firearm (as opposed to, say, antique dealers).

Recognizing the right to self-defense under 2A is also questionable. Murder was, and remains to be, a state-law crime. States are allowed to decide which affirmative defenses they want to recognize and to what extent. (Unless, of course, they were concerned with the seat of the Government, but I doubt that was the case.)

Perhaps the most rational reading, aside from empowering state militia, is that 2A protects the right to revolution. It makes sense to federalize it, and the lack of protection for using arms can simply be attributed to redundancy. If rebels won, they won't face liability anyway, and if they lost, Article Three provides the consequence.

[Kazinski]

Heh:
"aside from the textual argument"

Yeah other than the text of the constitution, we would be as well.armed as.the English.

But you are mistaken, the second amendment does confer a right to self defense, natural law and the 9th amendment.

You are also wrong about the 2nd amendment empowering state militias, other than preventing the people from being disarmed. Congress's Article 1 power over the state militia is almost absolute:

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

In fact during the civil rights era federalizing the state national guards and putting them under federal orders cut the knees out from state resistance to federal court mandates.

[Brett Bellmore]

First of all, you can't set aside the textual argument without abandoning the rule of law: The Bill of Rights isn't a bill of suggestions, it is part of the highest law of the land, and if the government isn't willing to faithfully abide by it, even if the people running the government think it pointless, the government itself is criminal.

Second, "First, the Constitution protects the people from the government. It does not protect the people from criminals."

No, by and large, the people protected the people from criminals; You have to remember that the Constitution was written at a time when what we know as "police forces" didn't yet exist. The first organized "police force" in America didn't show up until 1838 in Boston.

The government defended against invasion by other countries, defense against criminals was self-help. It still is: The police don't defend people under normal circumstances, they track down criminals after the fact. You have to defend yourself.

"I doubt it was the situation where a right was so obvious that they didn't think it would need to be enumerated."

This was an era when being succinct was less of a virtue than an obsession, they absolutely WOULD have omitted mention of a right if they thought it was a perfectly obvious implication of something they'd already written. In fact, we have an amendment in the Bill of Rights specifically prohibiting this argument, the 9th amendment: The fact that a right isn't enumerated is a prohibited basis for legally concluding it doesn't exist!

They wrote that amendment because they absolutely knew that they weren't listing all the rights that the government should respect.

"If the Government can regulate the use of firearms, they should be able to regulate firearms so that only those suitable for lawful use can be possessed, at least in cases where the defendant intends to use the firearm"

This brings us back to both the textual argument, and the nature of "rights". Rights are exactly those things where the citizen, not the government, gets to make the decisions. Once you have a right to freedom of the press, for instance, the government doesn't get to decide what you "need" to publish.

Secondly, short of perhaps bombs, every firearm is capable of lawful use, even if it's only target shooting.

"Recognizing the right to self-defense under 2A is also questionable."

Finally, in the US self defense is regarded as a basic unenumerated right, an implication of the right to life, it is unavoidably legal. It's logically and legally prior to the government itself.

[Dan Schiavetta]

"Perhaps the most rational reading, aside from empowering state militia, is that 2A protects the right to revolution."

These two ideas are diametrically opposed. There was no standing army (and such was viewed with suspicion) so the only way to put down rebellions was via state militias. There had just been Shays's Rebellion and the "security of a free state" was a real concern.

To say that the Bill of Rights was approved along with the new government, but approval of the 2A was meant to facilitate tearing that government down, is like saying, "Yes, we'll buy this car, but only if you promise that it will break down."

[Brett Bellmore]

That's just silly. As I wrote above, the Constitution and Bill of Rights were written by people who were, themselves, revolutionaries. They didn't think revolution was categorically wrong, and while they didn't believe they were creating a government in immediate need of overthrow, they weren't so fatuous as to suppose that it was guaranteed to forever remain that way.

If you want an automotive analogy, braking systems of cars are designed to have more stopping power than the engine can overcome if at full throttle. This is deliberate: While you are ordinarily expected to not use the brakes and throttle at the same time, if, in an emergency, the throttle sticks at full, the brakes can be used to bring the car to a halt anyway.

You could, in theory, design cars to rely primarily on engine braking, and only have parking brakes with modest stopping power. And things would be fine ordinarily, but if your throttle ever got stuck, you'd be out of luck. We do things this way because we want to be prepared for such malfunctions!

Similarly, the militia is, in ordinary times, expected to work in concert with the government. But an army would work in concert with the government, too! So why prefer the militia?

Because, in an emergency, where the interests of the government and the people are at odds, you would expect the militia to take the people's side, not the government's, because the militia ARE the people. You wouldn't want to count on a standing army doing that, which is exactly why the founders rejected a standing army in favor of a militia system.

So, there is no contradiction at all: The militia is an instrument of government in ordinary times, when the interests of government and the people are aligned. But in revolutionary times, when the interests of the government and the people are opposed, it is expected to take the side of the people, and become an instrument of revolution.

[Brett Bellmore]

And this, of course, is why the right was guaranteed to the people themselves, NOT to the militia.

Because a government trending in the direction of tyranny, being aware of this character of militias, would want to minimize the militia, and build up a standing army instead. And if only the militia members had a right to be armed, the government would be able to do this.

But with the right belonging to the people, NOT the militia, then even in such a case, the people can form an armed militia with which to oppose the government even if the government doesn't want them to be able to.

Which leads us to the self defeating element of gun control, which I have remarked on before: The very fact that gun controllers seek to disarm the people signals to anybody who is aware of WHY the 2nd amendment was adopted, that we are trending in a direction that might lead to that very emergency.

The harder you try to take the guns away, the more you convince people that they don't dare let you succeed!

[JoeFromtheBronx]

First, the Constitution protects the people from the government. It does not protect the people from criminals.

The Constitution protects the people from governmental laws that wrongly limit addressing criminals. The Constitution doesn't stop people from being harmed by bad ideas. It does stop the government from wrongly limiting how we respond to them.

The government might wrongly limit firearms in a way the Constitution addresses. Also, note that the government has the right to regulate the wrongful use of speech and religion.

The general concern was that the federal government would wrongly interfere with state regulation of militia. It later became more popular to speak of an individual self-defense concern.

The ability of the government to regulate "murder" still leaves us with a question of what that means. There was a common law understanding of the right to self-defense. It is partially a factor in the right to privacy -- if the home is your castle, proverbially, there is also a right to defend it from attack.

[gVOR08]

It’s a shame James Madison didn’t provide any hint as to the purpose of the Second. If only he’d thought to leave something like, perhaps, an explanatory preface.

[Kazinski]

The preface was added as a justification of why it was a federal issue, rather than a matter left to the states.

The court explains in US v Miller 1939:

"The Constitution, as originally adopted, granted to the Congress power --
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

Nothing in the second amendment dilutes Congress almost absolute power over the militia, so it can't be a grant of power to the states, in fact it narrows their powers further by guaranteeing they can not disarm the people.

The Article 1 Militia clause is also an example of the framers speaking clearly when they are granting power to Congress. Why would they put such an inkblot preface in front of the second amendment that allegedly restricts Congress' article 1 power?

[Sisu]

Prof. Tom Bell, Chapman University Fowler School of Law, offered a unique perspective on the Second Amendment Preamble, which he developed from a brief letter shared in a newsletter publication, Liberty - September 2010 (ssrn-4976064).

In short, he makes a compelling argument that SCOTUS in Heller, McDonald, Bruen and all other pro Second Amendment decisions has blatantly (and perhaps intentionally) mischaracterized the Preamble - “A well regulated Militia being, necessary to the security of a free State,” as being "pro militia", i.e., the militia is a good and desirable thing.

But, "Plain Meaning", "Constitutional Structure", "Original Meaning" and "Consent of the People" all would compel a "counter-militia" understanding, i.e., the militia like (the same as) government is nothing more than a "necessary evil" against which the People must be ready to stand opposed. ... Curiously, while Bell does not discuss, it would appear this counter militia understanding is wholly consistent with Bruen's "history" and "tradition" given the founders had stood in armed opposition to the King of England when he attempted to disarm the colonists.

[Kazinski]

Silly argument.

Congress was charged with regulating the militia in Art. 1 Sec 8, did they just throw up there hands in the the first session and give up on militias, when they passed the 2nd amendment 2 years later?

[John F. Carr]

"They rely on the false premise that the government will be there to protect them."

The government is not responsible for protecting anybody. One could imagine a legal regime where the government is responsible for security in areas where guns are illegal. If you go into a gun-free park and get shot or stabbed, whoever established the gun-free zone is presumptively liable. I think that would change the Second Amendment analysis.

[Michael Ejercito]

It is not what we have.

Was it not Christopher Charles Morton who once wrote, "The gun controller's motto: “We don't have to protect you and we won't let you protect yourself"?"

[JoeFromtheBronx]

The government is not responsible for protecting anybody.

The Declaration of Independence tells us governments are formed to secure our rights. We give them the responsibility to protect us in various respects. They are for instance responsible for protecting us from foreign attack.

[Sisu]

The Constitution only mentions the "People", never the "Individual".

[JoeFromtheBronx]

Don't know what the point is but a range of language, including "person" is used in the Constitution.

[Frank Drackman]

The right to Keep and Bear Arms (as much as I'd also like to Keep and Arm Bears, it's not a constitutional right) comes from J-hay (Insert preferred Surpreme Being here), not any ridiculous Human Court. When He tells me to disarm (and I'm on intimate terms with the Big guy) I'll consider it then.
Consider it, He's been a little lax with his terrible swift sword lately.

Frank

[reasonable]

..."but no stops were pulled when it came to apprehending the likes of Bernard Goetz."

I think you mean, "all stops were pulled". It's a reference to musical organ stops. Pulling out stops increases volume.

Or perhaps you means that no punches were pulled.

[Brett Bellmore]

The traditional phrase is "pull out all the stops", but, yes.

Increases the volume, and/or adds different versions of the same note. The keys select notes, and the stops select the combination of pipes for that note that play when the key is pressed.

I've got a book on organ design because my son is thinking of building a pipe organ for his senior project.

[DixieTune]

Bernie Goetz shot four thugs. The only one of the four who didn't end up back in jail was the one who was left paralyzed by Bernie's bullet. He was obviously in the right here.

Goetz was then found civilly liable by an all black and Hispanic jury in the Bronx. As Frank Drackman said in another thread, whites cannot get a fair trial before a non-white jury.