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<![CDATA[Right to Keep and Bear Arms]]>

Gun banners cling to “evolving” view of the Second Amendment

June 6, 2022 by Cam Edwards Leave a Comment

There’s been no shortage of weak arguments about the right to keep and bear arms over the past few weeks, and I’d say that this column by Daily Beast columnist Eleanor Clift is definitely a contender for one of the Top 5 Bad Takes on the Second Amendment that I’ve seen this year. In fact, it’s so bad that I felt compelled to respond to it on today’s Bearing Arms’ Cam & Co, which you can check out in the video window above.

Clift’s argument is simple: there’s overwhelming support for “reasonable” gun restrictions in this country, but Congress has been stymied thanks to the evil machinations of the gun lobby and the Supreme Court, which went against centuries of settled law in 2008 when it ruled in Heller v. D.C. that the Second Amendment protects an individual right to keep and bear arms.

How we got to the Heller decision in 2008 expanding and lionizing gun rights “is a story about political mobilization on the Right in the 1980s. It was a multi-pronged effort by the NRA and its allies to weaken gun laws at the state level, and support academic and opinion pieces that extolled firearms for self-defense,” says Darrell Miller, co-director of the Duke Center for Firearms Law.

“It didn’t fall from the skies with the Heller decision. It was a long, 20-year runway of changing the conversation that culminated in Heller,” says Miller, citing the impact of an article published in the Yale Law Journal in 1989 by constitutional scholar Sanford Levinson, a noted liberal, that was titled, “The Embarrassing Second Amendment.” Levinson chided his fellow liberals for being quick to defend individual rights, like those of criminal defendants, while shunning the Second Amendment. The piece was heralded by conservatives, prominent columnist George Will among them.

Since Heller, a vision of the Second Amendment as an instrument to prevent most gun control has taken hold, “yet no court has ever said that, and no Founder said that. This aspirational vision is something gun rights activists have just made up” says Adam Winkler, author of Gunfight: The Battle over the Right to Bear Arms in America. “It’s their wish and they’ve been fighting to institutionalize it, and they’ve been successful.”

This is, to put it bluntly, a load of crap. First off, as Clift herself acknowledges, support for an individual rights view of the Second Amendment wasn’t confined to “the NRA and its allies.” Even respected liberal legal scholars like Sanford Levinson and Akhil Reed Amar have pointed out that many Americans have long viewed the text of the Second Amendment as protecting an individual right to keep and bear arms, though who exactly we need protection from has changed at various points in U.S. history.

Clift wants to make the case that for most of our history we all concluded that the Second Amendment was a dead letter, but that position isn’t borne out by the evidence, which demonstrates that over the past 250 years our predecessors knew exactly what they were protecting and defending.

In 1776, the authors of the Pennsylvania Constitution declared that “the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination, to, and governed by, the civil power.” Between then and 1998, when Wisconsin changed its state constitution to recognize “The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose,” dozens of states have included language in their state constitutions making it explicitly clear that the individual right to possess and carry a firearm is fundamental.

It’s true that there hasn’t been a lot of Second Amendment jurisprudence over the decades, but that’s probably due to the fact that the modern gun control movement didn’t really kick off in earnest until the late 1960s, and we simply don’t have any historical analogues for D.C.’s ban on handguns until the 1970s.

Then there’s Winkler’s asinine statement about the “aspirational vision” of gun rights activists. When you’re fighting for a right, of course you’re going to view it expansively. Until recently, you didn’t hear much talk from, say, the ACLU about the need to restrict the freedom of the press or the right of free speech, even for those most disagreeable opinions out there. Similarly, you don’t see many Fourth Amendment advocates calling for “reasonable” restrictions that would allow for widespread use of “stop-and-frisk” policies.

Substantive rights actually mean something, and that includes our right to keep and bear arms. The reason why gun owners and Second Amendment activists have been waging this multi-decade campaign to push for full recognition of that right is because they’re pushing back on attempts to regulate that right out of existence., and the reason why we’ve been so successful is because most of us understand that the Second Amendment is a real right and not an historical anachronism.

Just look at the sweeping success of the right-to-carry movement since the 1980s. Dozens of states have adopted “shall issue” concealed carry laws, and now fully half of the states have permitless carry laws on the books as well, which means if you can legally own a firearm you can lawfully carry it without first having to get permission from the state. Not one of those states has seen fit to repeal either their “shall issue” or permitless carry laws, and there are now tens of millions of responsible gun owners who are lawfully bearing arms in defense of themselves and others.

Even under an “evolving” view of the Second Amendment, in other words, there’s little evidence that a majority of Americans have suddenly concluded the right to keep and bear arms is a fundamental right protected by the Constitution. If Clift really thinks otherwise, I’d encourage her to start a campaign to repeal it and see how far she gets. I think she’d soon realize that it’s her and her gun-banning friends who are on the wrong side of history… and the Bill of Rights.

Filed Under: <![CDATA[Cam &amp; Co]]>, <![CDATA[Cam Edwards]]>, <![CDATA[Daily Beast]]>, <![CDATA[Eleanor Clift]]>, <![CDATA[Gun Owners]]>, <![CDATA[Gun Rights]]>, <![CDATA[right to carry]]>, <![CDATA[Right to Keep and Bear Arms]]>, <![CDATA[Second Amendment]]>, <![CDATA[Video]]>, Bearing Arms, News

Will Iowa's right to keep and bear arms referendum be out of date by Election Day?

May 13, 2022 by Cam Edwards Leave a Comment

When voters head to the polls in Iowa this year, they’ll not only have the opportunity to cast their vote for several state and federal offices, but the chance to change their state constitution as well. A proposed amendment will be going before the voters that would enshrine the right to keep in bear arms in the Iowa Constitution, which is one of just a handful of states that do not mention the right to keep and bear arms.

That would change if the straighforward language of the proposed amendment is adopted: “The right of the people to keep and bear arms shall not be infringed. The sovereign state of Iowa affirms and recognizes this right to be a fundamental individual right. Any and all restrictions of this right shall be subject to strict scrutiny.”

The proposed amendment is getting some scrutiny of its own, including from some gun control advocates who claim that enshrining the right to keep and bear arms in the state constitution would have disastrous consequences.

If Iowa were adopting the Second Amendment, it would say: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Iowa’s proposal has no mention of a militia, no mention of the security of the state. Instead, it refers to Iowa as a “sovereign” state, a term popular with secessionists and anti-government kooks.

The proposal also designates the right to keep and bear arms as a “fundamental” right. That word carries deep meaning in a legal context. It does not appear in the Second Amendment.

Fundamental rights include your ability to move between states and to have custody of your children. Whatever the gun industry might like you to think, taking your gun away from you should not be in the same legal category as taking your child away.

Let’s dispel the myths being advanced here. First of all, there’s nothing kooky about using the phrase “sovereign state,” which is a fairly common (though legally vague) description for states within the U.S. Even the Supreme Court has recognized that the Constituion “preserves the sovereign status of the States” because it “reserves to them a substantial portion of the Nation’s primary sovereignty, together with the dignity and essential attributes inhering in that status.”

As for the columnists’ bizarre definition of a fundamental right, once again they should look to what the Supreme Court has said and done. As University of William & Mary law professor Timothy Vick wrote a couple of years ago:

As recognized in District of Columbia v. Heller and interpreted in the lower courts, the Second Amendment exhibits all the hallmarks of a fundamental constitutional right. It is a non-economic, individual dignity right that is considered ‘implicit in the concept of ordered liberty.’

But those aren’t the only objections to the Iowa constitutional amendment raised by the gun control supporters. They also have a big problem with the last line of the proposed change.

Strict scrutiny means that any limitation on “keeping and bearing arms” must fulfill a compelling state interest, and must be narrowly tailored to meet that compelling interest. It is extremely difficult for the government to meet this burden of proof.

Imagine trying to justify a law to the courts that works one way for Black people and another way for everyone else. That’s the level of scrutiny that gun laws would have to pass.

Again, that’s a really weird hypothetical to use, especially when there’s no shortage of real cases involving strict scrutiny, which is indeed the highest standard of review (at least based on a tiered system of “rational basis”, “intermediate scrutiny”, and “strict scrutiny”) that courts use when determining the constitutionality of a given law and its discriminatory impact on we the people. Strict scrutiny has been regularly used as the basis of review in First Amendment cases, so it stands to reason that it would be the default when it comes to Second Amendment challenges as well. Basically, all the Iowa amendment is stating is that the Second Amendment should be treated as a fundamental right by lawmakers and judges alike.

But there could be another issue with the “strict scrutiny” provision in the proposed amendment; namely, the fact that the Supreme Court might decide that strict scrutiny actually isn’t the proper standard of review, and that a “text, history, and tradition” test is the more appropriate standard for cases dealing with the right to keep and bear arms. As Duke University law professor Jake Charles noted back in 2019, justices Samuel Alito and Brett Kavanaugh have expressed support for using that standard, and longtime Second Amendment attorneys and scholars like Stephen Halbrook also believe that a “THT standard” is the best option for justices and lower court judges to use.

New York State Rifle & Pistol Association v. Bruen concerns whether New York may condition the right to carry a firearm on an official’s finding of “proper cause.” “Proper cause” means an exceptional need, and it excludes, for example, residence in a high-crime area. Possession of an unlicensed, loaded handgun subjects one to 15 years incarceration. The court should decide the case based on text, history, and tradition, the methodology it applied in District of Columbia v. Heller holding that a ban on handguns in the home violates the Second Amendment. In Heller, the court eschewed an “interest-balancing” test under which judges “decide on a case-by-case basis whether the right is really worth insisting upon,” and it should do the same here.

So what happens to the proposed RKBA amendment to the Iowa Constitution that specifically mentions “strict scrutiny” if the Supreme Court comes out in a few weeks and declares that interest-balancing tests, even those that adopt strict scrutiny, aren’t the appropriate standard of review when it comes to our right to keep and bear arms? I have a hard time imagining that the amendment would be pulled, or that supporters would suddenly call on voters to reject the amendment while they work on a new one. At the same time, it’s not possible to change the language of the proposed amendment at this late date. In fact, the issue is only going to the voters now because the legislature in two separate sessions approved the language on the ballot.

If the Court comes out and formally declares that “text, history, and tradition” is the proper standard of review, the best choice for Second Amendment supporters in Iowa this fall would be to approve the constitutional amendment as its written, and immediately get to work on amending the amendment to fall in line with SCOTUS’s reasoning. It may end up being a moot point if the Supreme Court declines to firmly state what standard of review should be used in Second Amendment cases going forward, but given the arguments in the Bruen case and the views of at least a couple of Supreme Court justices, there’s a substantial likelihood that Iowa’s proposed amendment may be a little out of date by the time Election Day rolls around.

Filed Under: <![CDATA[2022 elections]]>, <![CDATA[constitutional amendment]]>, <![CDATA[history text tradition]]>, <![CDATA[Iowa]]>, <![CDATA[Right to Keep and Bear Arms]]>, <![CDATA[Second Amendment]]>, <![CDATA[state constitution]]>, <![CDATA[strict scrutiny]]>, <![CDATA[Supreme Court]]>, <![CDATA[Video]]>, Bearing Arms, News

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