Over the last two months, I’ve written about NRA’s extremely successful efforts to defend and advance our rights protected under the Second Amendment through aggressive legislative campaigns; both at the federal and state level.
Legislative victories, however, are by no means permanent solutions to ensure that the rights of law-abiding gun owners will be protected from those dedicated to eliminating our freedoms. Almost without fail, the moment pro-Second Amendment reforms are enacted, the most virulent anti-gun legislators race to file bills to overturn the new laws. At the same time, as if carefully coordinated, left-wing ideologues dedicated to eradicating guns in America sprint to the courtrooms of activist judges to file suits against any law deemed beneficial to law-abiding gun owners.
Don’t get me wrong; legislative victories are vitally important. But with one bad election cycle, rare though they may be, such victories can be short-lived, and a pro-gun reform can be watered down or repealed if a legislature is turned anti-gun. Furthermore, one anti-gun judge could (as many have) ignore legislative intent and court precedent in order to neuter laws intended to protect our rights.
One could say that legislation is often written in sand, but judicial rulings are frequently carved in stone. This is why this third installment of my discussion of NRA successes will focus on the one area where victories could ensure the Second Amendment is protected for generations.
I’m speaking, of course, about the courts.
Today, we are at a point in time when the rights of law-abiding gun owners are on more solid legal ground, especially when it comes to the federal judiciary, than probably anyone alive today can remember.
That hasn’t happened by accident, and it didn’t happen overnight.
Anyone reading this is undoubtedly aware of the significant rulings by the Supreme Court in the landmark cases of District of Columbia v. Heller and McDonald v. City of Chicago. The Supreme Court found in Heller that the Second Amendment, as you and I already understood, protects an individual right and struck down D.C.’s ban on the possession of handguns and other functional firearms in the home for self-defense. Because that ruling only applied to the federal government, it took the ruling in McDonald to ensure the individual rights protections were “incorporated” to apply against state and local infringements.
In its early years, the Supreme Court determined that the provisions of the Bill of Rights (i.e., the first 10 amendments to the United States Constitution) only apply directly to protect individual rights against violations by the federal government and its agents. Even after the Fourteenth Amendment was adopted in 1868, and in spite of its primary framer espousing that it should be interpreted to extend the protections of the first eight Amendments of the Bill of Rights, it took until the 1920s for the Supreme Court to truly begin determining that states, like the federal government, were prohibited from imposing restrictions on our rights.
As I said, we didn’t get to the Heller and McDonald era overnight. While the Supreme Court worked piecemeal, and over decades, to incorporate other rights, it ignored the Second Amendment.
With Heller’s recognition of a protected individual right, and McDonald’s incorporation, these two cases have laid the foundation for challenging countless laws that clearly infringe on the rights enshrined in the Second Amendment. Needless to say, I’m immensely proud that our great organization was a leader in helping to see these cases to fruition.
The path to winning these cases didn’t start when they were filed, it began nearly a decade before Heller was decided, when NRA helped to elect President George W. Bush. If Al Gore had been in the White House instead of Bush after the 2000 elections, I can guarantee you he would have put an anti-gun majority on the Supreme Court. Without Chief Justice John Roberts and Associate Justice Samuel Alito, the Heller and McDonald cases would have either never been heard or the result would have been dramatically different.
While these are clearly landmark cases, they are by no means our only successes.
NRA regularly has to turn to the courts to defend laws it has helped to enact. In my last column, I mentioned the success NRA has had in promoting firearm preemption statutes at the state level, which ensure that local governments do not pass laws that impose greater restrictions on law-abiding gun owners than those that apply statewide. Anti-gun politicians in local governments, however, regularly ignore state preemption laws.
After Hurricane Katrina devastated New Orleans, local authorities suspended the Second Amendment, and actually seized firearms from law-abiding residents.
In numerous states, NRA has successfully challenged local laws and ordinances that violate state law. In 2008, a court struck down Proposition H in San Francisco, a local ordinance that prohibited virtually all city residents from possessing handguns. The ordinance also prohibited all city residents, without exception, from selling, distributing, transferring and manufacturing all firearms and ammunition. Although California’s preemption statute is not as clear as we would prefer, our legal challenge was still successful.
Across the country in Pennsylvania, the preemption statute is not only clearer than California’s, but has been affirmed in a number of legal challenges over the years. Nonetheless, NRA had to sue the City of Philadelphia in 2008 to prevent its anti-gun police commissioner from enforcing restrictions that clearly violated the preemption statute. We succeeded in getting an immediate restraining order against enforcement.
As you are likely aware from recent reporting on Pittsburgh, that city is ignoring Pennsylvania’s preemption statute today, and NRA is assisting city residents with their lawsuit challenging a ban on publicly carrying loaded magazines that accept more than 10 rounds of ammunition.
Last month I mentioned that after Hurricane Katrina devastated New Orleans, local authorities suspended the Second Amendment, and actually seized firearms from law-abiding residents. While we worked through the legislature to pass a law to ensure that never happened again, NRA also had to file suit to ensure seized firearms were returned to their lawful owners. It took three years, but New Orleans eventually capitulated to settle the suit.
Honestly, I don’t have enough space to talk about all of our past legal victories, and I want to be sure to discuss the future.
As I wrote earlier, the future appears to be bright for the Second Amendment when it comes to the courts, at least at the federal level. Having been instrumental in helping to elect President Donald Trump in 2016, that effort is bearing substantial fruit. Two more Supreme Court justices that support an originalist view of the Second Amendment—Justices Neil Gorsuch and Brett Kavanaugh—have been confirmed. President Trump is also working at an unprecedented pace to appoint judges to lower levels of the federal judiciary, and the Senate has already confirmed over 100 of his judicial nominees.
We are currently working on cases all over the country to challenge restrictions on the right to carry, bans on the most popular rifles in the country, and limitations on magazine capacity that prohibit law-abiding gun owners from having the most effective means of defending themselves. In addition, there are two NRA-supported cases that have been appealed to the Supreme Court that have the potential to add to the precedents set in Heller and McDonald.
The Court has already agreed to hear New York State Rifle & Pistol Association v. The City of New York. This case challenges the constitutionality of one of the most absurd gun laws in the country, where lawful owners of handguns who reside in New York City are not just severely limited to where they may legally transport their firearms within the city limits, but are virtually prohibited from transporting them outside the city.
As I write this, we are awaiting the court’s decision on whether it will take up an appeal in the case of Rogers v. Grewal. This case challenges the unconstitutional requirements for obtaining a permit to carry a handgun in New Jersey. It would be generous to call the current system “may-issue,” as the overly restrictive and time-consuming process requires applicants show “justifiable need” or “good reason” in order to be approved. Permits are rarely approved, and most people simply give up when faced with the monolith of New Jersey’s anti-gun bureaucracy.
These two cases had to be appealed to the Supreme Court because many in the federal judiciary are still hostile to our right to keep and bear arms. In spite of the precedents set in Heller and McDonald, some activist judges feel they have the authority to ignore previous rulings to promote their anti-Second Amendment views.
Fortunately, as more rulings are handed down that comport with Heller and McDonald, and as President Trump continues to appoint more judges that embrace these rulings, anti-gun judicial decisions should begin to fade or at least become the outliers that they should be.
To ensure this trend continues, gun owners must work together to ensure that President Trump and a pro-gun Senate can continue to nominate and confirm judges who respect the Second Amendment. American voters will once again be faced with sharply contrasting views for the future of our right to keep and bear arms in the 2020 election. Together, we can once again make a difference for the future of our firearms freedom.