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2nd Amendment and the Supremes

Steve Comus

July 1, 2018 — With all of the hoopla recently over who might replace retiring U.S. Supreme Court Justice Anthony Kennedy, one might assume that the Supremes and the Second Amendment are joined at the hip. Actually, almost the opposite has been true historically.

When Justice Neil Gorsuch was confirmed onto the court to fill the vacancy created with the untimely death of Justice Anton Scalia, a tenuous “balance” was reinstated.

Many decisions in recent years have been 5-4, with the same four on either side and the fifth being the deciding vote. Justice Kennedy often was the deciding vote. If Justice Kennedy’s replacement is an originalist (believes the Constitution says what it means and means what it says), then the balance will be tilted one vote in favor of the Constitutionalists, which portends votes of 6-3 on a more regular basis. That would change the entire dynamic of the high court.

Whether that would change the court’s history of not considering many Second Amendment cases is not known, and to at least some degree, remains rather moot.

Justice Clarence Thomas was on-target when he referred to the Second Amendment as “this Court’s constitutional orphan.”

These thoughts are floated as the Heller decision hits its 10th anniversary. That was one of the few Second Amendment cases in which the Supreme Court actually made a decision. The decision was that the Second Amendment is an individual right.

Some think the Second Amendment is there so citizens can defend themselves against a rogue government. Others see it as the guarantor of self-defense.

When one considers the subject matter involved in exercising the Second Amendment, it is little wonder why the Supremes have been reticent to handle the hot potato that such a right becomes when applied broadly in society.

We’re talking about deadly weapons here and we’re talking about allowing every Joe and Mary Sixpack in the land the freedom to “keep and bear” them. It formalizes what would evolve anyway, which saves society a lot of pain and agony on the road there.

The reason the Supremes haven’t wanted to handle any more Second Amendment cases than they have is that in doing so, they find themselves in a quandary that is triggered by a conundrum. Face it, the Second Amendment is the most revolutionary of all amendments and was written by revolutionaries – those who openly revolted against the established order of the time. The Supreme Court now personifies the present established order. Justices, by definition the keepers of the established order, are asked to rule on a revolutionary principle in established order terms and from established order perspectives. Tough challenge, at best. Hence, it is much easier for them to ignore the subject when possible.

Yet it is the act of ignoring the issue of gun freedom that brings it back to the Supreme Court repeatedly, begging to be considered. It is because lower courts ignore the reality of the Second Amendment that the battle never ends.

This ignoring phenomenon is now pervasive in society. Much of the citizenry ignores the Constitution, either because they are unaware of what is in it, or they think that their personal whims are more important. Open access to the Internet seems to have fooled a lot of folks into thinking they matter – that others actually care about them and what they think. That is delusional, of course, but nonetheless, true.

Elected officials ignore the Constitution because they would rather pander to the loudest whiners than remain true to their oaths. And that is when they are not being bought off by the highest bidder. Hence, they pass laws that even the dimmest dunce should know would not pass Constitutional muster.

Those draconian laws, in turn, trigger lawsuits that end up in courts, etc., etc. It is a governmental/legal daisy chain in which lots of folks get rich while others hitch their wagons, hoping to capitalize on the endless “somebody done somebody wrong song.” Profiteers are prolific on all sides of this one.

Anti-gun forces should bend down and kiss the ground upon which the Founding Fathers walked when they were cobbling-up the Second Amendment. Without it, their lack of arms most surely would put them at perilous disadvantage.

Some folks opine that absent the Second Amendment, there might be no guns in society. Truth is that the Second Amendment guarantees orderly processes relative to firearms. Black markets don’t do that.

What the recent markets in arms show clearly is that the citizenry will not be denied. To attempt to take their guns away is to repeat the folly of the 18th Amendment and the Volstead Act. The 18th Amendment was repealed by the 21st Amendment — two amendment to get back to where it all started.

Prohibition itself was not a gun issue, but the problems brought on by prohibition resulted in the most stringent gun control laws imaginable at the time. The point is that when the citizenry decides it really wants something or really don’t what something, it gets it – one way or the other.

So, whether the evolving Supreme Court continues to ignore the Second Amendment or decides to be originalist in its interpretation of it, all can be well with the world.

What cannot be allowed to happen is for the court to make decisions contrary to it. And it doesn’t look like that will happen anytime soon.

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