Another Federal Court Undermines the Second Amendment

Posted: Feb 12, 2014 12:01 AM
Another Federal Court Undermines the Second Amendment

Crime once again is on the rise in America. According to recent figures from the Bureau of Justice Statistics, crimes against property are up a staggering 12 percent from last year; violent crime even more -- 15 percent. Citizens in many of our country’s largest metropolitan areas increasingly are becoming victims of gun-toting criminals, even as liberal mayors, governors, and state legislators continue their efforts to undermine the Second Amendment rights of those very citizens.

One might think that the end of America’s two-decade long decline in crime might serve to justify the need to strengthen – not weaken – the ability of law-abiding citizens to arm themselves defensively in order to fight back against armed criminals. Not so; and even learned federal judges are not immune from succumbing to the childish notion that the best way to protect citizens is to disarm them. Take Third Circuit federal appeals court Judge Ruggero Aldisert.

Writing recently for the Third Circuit in Drake v. Jerejian, Judge Aldisert ruled that bureaucrats working for the Commonwealth of New Jersey may summarily deny citizens the right to protect themselves against armed criminals -- notwithstanding the language in the Second Amendment guaranteeing individuals that right, and as reaffirmed by the United States Supreme Court in two landmark decisions in 2008 and 2010.

Judge Aldisert’s misguided opinion is awaiting a decision from the Supreme Court whether it will hear the case (which hopefully it will). The issue at stake is vital – whether a citizen of the United States and of the Commonwealth of New Jersey, can defend himself or herself with a firearm, without having to submit themselves to the arbitrary decision of a local government official. Specifically, the question is whether New Jersey’s handgun permit law unconstitutionally restricts citizens’ Second Amendment rights – first, by forcing them to obtain permission to carry a concealed firearm from the local police chief; and second, by requiring them to demonstrate to the local government a “justifiable need” for carrying a concealed firearm.

In its opinion, the federal appeals Court relies on an exercise in circular reasoning that would make one of the Obama Administration’s arguments in support of ObamaCare appear logical by comparison. The lynchpin of the Court’s ruling is that the “justifiable need” aspect of the New Jersey statute falls outside the scope of the Second Amendment. The two-member majority opinion grants essentially absolute deference to the state legislation; finding it to be “presumptively lawful” and “longstanding.”

In other words, if a state legislature has passed a gun-control measure that has been on the books for a long time, the citizens of that state can be denied their right to keep and bear arms; and the government officials who have thus rendered the citizens defenseless, are immune from constitutional scrutiny.

The rationale on which the Third Circuit bases its opinion is that the seminal 2008 Supreme Court Heller decision – which clearly affirmed that the Second Amendment protects an individual right to keep and bear arms, as opposed to some amorphous, collective right as long-argued by gun-control advocates – extended only to possession of a firearm inside the home. Such a pinched reading of the Second Amendment, of course, flies in the face of history and common sense – as noted in December 2012 by Seventh Circuit Judge Richard Posner. Posner, unlike at least two of his colleagues on the Third Circuit federal bench, understood the absurdity of allowing a state to enact “[a] blanket prohibition on carrying [a] gun in public,” because doing so renders a person defenseless perhaps where it matters most – walking in a crime-infested neighborhood.

Obviously mindful of Judge Posner’s opinion, Third Circuit Judge Aldisert noted that his fellow judge “may have read Heller too broadly,” even though he admits, “it is possible to conclude that Heller implies such a right [to publicly carry arms for self-defense]” – which of course, it does.

Ever since the 2008 Heller opinion (and the companion, 2010 Chicago v. McDonald decision), liberal judges and anti-gun state and local government officials have been fashioning ways to undercut and subvert the ability of citizen to exercise their Second Amendment rights. That’s why Alan Gura, the prominent Second Amendment lawyer who argued both Heller and McDonald, has stayed so busy since 2008. “It's nice that the Supreme Court declared we enjoy a fundamental individual right to bear arms, but that doesn't mean much if they allow lower courts to rubber stamp any infringement of the right,” says Gura. “It's not the judiciary's role to 'defer' to the legislature's alleged wisdom and expertise. It's the judiciary's role to guard our rights and enforce the constitution.”

As the opinion by Judge Aldisert in the Jerejian case starkly illustrates, the battle to protect the right of citizens in these United States to defend themselves with a firearm, remains very much alive today, and must itself be defended against assaults at all levels – up to and including the Supreme Court of the United States.