The Second Amendment Is One Supreme Court Justice From Repeal And Becoming Nothing More Than A Historical Artifact

October 11th, 2015

Awake Goy

In August, my colleague Charlie Cooke wrote an epic rant daring the Left to stop talking about repealing the Second Amendment
and start doing it. Introduce the repeal to Congress, work it through
the states, and tell the American people what you want to do — take from
them a fundamental, enumerated right from the
Bill of Rights. ~ David French – Related articles

As
Charlie eloquently outlines, repealing the Second Amendment is an
impossible task. Even worse for the Left, it’s political suicide.

If the Supreme Court’s decision in Obergefell v. Hodges
teaches us anything, it’s that the age of judicial supremacy means that
five justices can amend the Constitution far more efficiently than
Congress and the state legislatures.

Right now there are clearly four Supreme Court justices
who are committed to the absurd view that the operative clause of the
Second Amendment — “the right of the people to keep and bear Arms, shall
not be infringed” — doesn’t actually mean “the right of the people” and
therefore doesn’t encompass an individual right to own a weapon, even
for self-defense.

This view defies history
yet is received, conventional wisdom on the judicial Left, in much the
same way that it’s received, conventional wisdom that the Constitution
actually protects rights to abortion and gay marriage.

It is certain that the next Democratic nominee for the Supreme Court
will adopt that same ahistorical view, and if that nominee replaces, for
example, Justice Kennedy or Justice Scalia, then the five-justice
majority in District of Columbia v. Heller will be gone.

If
that majority goes, then the next gun-rights case will transform the
Second Amendment into nothing more than a historical artifact of the era
when the militia consisted of able-bodied men with muskets over their
mantles.

If Heller is overruled, then the regulatory state, in all
its immense power, can launch a systematic, undemocratic effort to deter
gun ownership even without true confiscation.

The appeal of regulatory
action is obvious. A Democratic president can use his or her left-wing
bureaucracy to implement a host of regulations without an act of
Congress and then veto any legislative effort to undo his or her
reforms.

It’s easy to imagine the regulatory possibilities — regulatory action
against ammunition; public-employee rules creating “gun-free employment
communities” that prohibit or greatly restrict private gun ownership by
public employees; aggressive regulatory action against various types of
ammunition; OSHA rules that require employers to restrict employees’
gun rights on “work safety” grounds. The list could go on and on.

#share#Further, in the absence of a federal constitutional right, gun
ownership in the deep-blue states would soon become even more perilous.

Chicago, Washington, and other major cities would re-implement and
potentially enhance their previous draconian restrictions on law-abiding
citizens.

Where gun-control majorities exist, the legislative process
would systematically limit gun rights. Where conservative majorities
prevail, the Left-dominated regulatory process would rule.

The
entire process would be backstopped by a federal judiciary committed to
“social justice” at the expense of history, reason, and logic.

Conservatives comfort themselves with the idea that comprehensive
gun-control efforts would spell electoral disaster for Democrats, much
as they did in 1994.

The difference, however, is that the Democrats have
already suffered two 1994-scale electoral disasters — in 2010 and 2014
— but, thanks to the regulatory state and the federal judiciary, the
Left’s power is largely unchecked.

What it can’t implement through
legislative processes, it’s largely implementing piecemeal through
regulations and judicial decisions.

Moreover, the Left has become very effective at using a combination
of social scorn, targeted litigation, and strategic regulations to
define which Americans can participate fully in the marketplace, in
government, and in academe.

Social conservatives are all too familiar
with the notion that universities, certain categories of public
employment, and even entire industries are increasingly closed off —
that they’re not welcome.

That’s despite the fact that we still (at
least in theory) enjoy constitutional rights to free speech and free
exercise of religion. Stripped of their individual right to bear arms,
gun owners would be uniquely vulnerable as the next targeted population.

If you consider this alarmist, consider the 2006 case of Washington State University student Ed Swan.

The university threatened Swan with sanctions, including potential
dismissal from its teachers’-education program, in part because of his
opposition to gun control. His department deemed that he did not have
the “disposition” to teach young students while supporting gun rights.

The university backed down after the Foundation for Individual Rights in
Education (FIRE) exposed its actions (I was president of FIRE at the
time), arguing that its “dispositions” mandates violated the First
Amendment.

The 2016 election is vitally important on a number of fronts, but few
Americans realize that the combination of judicial supremacy and the
modern regulatory state can essentially repeal the Second Amendment and
systematically roll back gun rights without a single act of Congress.

Hillary Clinton has vowed to use executive action to roll back gun
rights, and when that executive action includes not just regulatory
authority but also Supreme Court nominations, American gun rights are in
grave danger indeed.

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