Heller’s Vultures

posted on January 27, 2016
Eric Isselee

This feature appears in the February ‘16 issue of NRA America’s 1st Freedom, one of the official journals of the National Rifle Association.

As I travel around the country speaking to various groups, I’m sometimes asked: “Haven’t you already won the battle over the Second Amendment? Don’t you worry about having anything left to do?” 

These questions refer, of course, to the U.S. Supreme Court’s District of Columbia v. Heller decision. This was the landmark 2008 case in which the court unambiguously confirmed that the Second Amendment protects a fundamental individual right, independent of service in an organized militia and that the right includes possessing a handgun at home for self-defense. 

As critically important as Heller was, in many aspects it raised more questions than it settled. For the NRA, it marked the beginning of a long, tough effort, not the end of it. Heller was followed in 2010 by McDonald v. Chicago, in which the Supreme Court further clarified that the right recognized in Heller applies to actions at all levels of government—state and local, as well as federal. But the fundamental question still remains, how far does the right extend?

It has now been over five years since the U.S. Supreme Court has agreed to hear a case related to the Second Amendment. The same lower courts that used to deny outright the existence of an individual right have unsurprisingly shown little respect for the Heller or McDonald rulings. The next Supreme Court case on the Second Amendment might very well be a tipping point. It will either reassert Heller and McDonald or reinforce the lower courts’ retreat from them. And the president elected in 2016 will almost certainly dictate which direction the court will take.“Of the five justices voting on the side of the Second Amendment, two—Antonin Scalia and Anthony Kennedy—will be 80 years old when the next president is elected.”

As Second Amendment advocates, you and I have an opportunity to influence that choice in a positive way. But more than that, as freedom-loving Americans, we have a responsibility to safeguard and promote our precious liberties for future generations. If we fail in that task, those liberties will be extinguished, and our children and our grandchildren will never get them back.

Today, too many Americans are not allowed to exercise important rights secured by the Second Amendment. Some of America’s most populous states—California, Illinois and New York, among others—deny fundamental rights to their citizens.

Even after 13 years in this position, I’m still shocked by the anti-gun persecution that exists in parts of our country. It is well known that for many residents of California and New York, the ability to carry a handgun in public for self-defense is effectively out of reach. These states also ban some of America’s most popular rifles, calling them “assault weapons.” But did you know that residents of San Francisco can no longer buy any firearm from a dealer in their own hometown? Persecutory regulation forced the last gun shop in that iconic city to close last November.

So it’s not just a question of preserving a status quo all too many gun owners take for granted. For some, recognition of their most basic rights remains an ongoing battle. And if you think your rights will always be safe where you live, think again. Ask gun owners who thought the same thing in Washington state, Colorado and Oregon. Elsewhere, Nevada is currently under assault by anti-gunners. Arizona is in the crosshairs. And in the NRA’s home state of Virginia, Michael Bloomberg just spent millions in a bid to buy the state senate. NRA held the line, but we know he’ll be back.

In short, the stakes couldn’t be higher. A pro-gun Supreme Court majority is absolutely essential to preserving the Second Amendment. Period.

The simple truth is that Heller and McDonald were both decided by a single vote. Of the five justices voting on the side of firearms freedom, two—Antonin Scalia and Anthony Kennedy—will be 80 years old when the next president is elected. It’s possible, even probable, that the next president will have the opportunity to replace them. Justice Ruth Bader Ginsburg, a dissenter in the Heller case, turns 83 next month. Justice Stephen Breyer, another vote against the Second Amendment, will be 76.    

A pro-gun president could create a bulwark of support for the Second Amendment in the Supreme Court that could last for decades and potentially decide precedent that will secure the right long beyond that. Conversely, an anti-gun president could appoint members to the court who will reverse Heller and McDonald and effectively repeal the Second Amendment from the Bill of Rights.

We don’t have to guess what the justices themselves believe. And the transparently false rhetoric of anti-gun activists—who claim to support the Second Amendment but have never met a gun control law they didn’t like—will be revealed for the lie it is when the issue next goes before the Supreme Court.

“… an anti-gun president could appoint members to the court who will reverse Heller and McDonald and effectively repeal the Second Amendment from the Bill of Rights.”Recently, I saw a fundraising pitch from a group that ironically calls itself the American Constitution Society. The group assured supporters it is “working hard to provide a counter-narrative to the Supreme Court’s decision in District of Columbia v. Heller.” They promised to use contributions to “[g]ather together Second Amendment legal and historical scholars and gun safety advocates to develop and implement a strategy to undo the damage of Heller.”

And while we don’t know for sure who the final nominees for president will be, the Democratic front-runner has made her position on the Second Amendment unmistakably clear. Last September, Hillary Clinton was caught on tape telling wealthy supporters in New York that “the Supreme Court is wrong on the Second Amendment.” She additionally promised, “I am going to make that case every chance I get.”

So far, she has made good on that vow. Hillary Clinton has rolled out an ambitious anti-gun agenda that includes repealing federal laws that are designed to protect the Second Amendment, banning broad categories of guns and using executive authority to pursue gun control. She has publicly endorsed Australia’s mandatory gun-surrender regime. Her campaign has produced expensive television and Internet ads devoted entirely to gun control. 

I want to say this as clearly as I can. Hillary Clinton has publicly embraced gun control positions and aspirations the likes of which many of us hoped we’d never see again after Heller and McDonald. A Hillary Clinton presidency would not just usher in a resurgence of gun control via federal statutes, regulations and executive orders. It would also mean we’d have a U.S. president dedicated to rewriting what she considers a historic wrong by the U.S. Supreme Court and to eradicating the individual right protected by the Second Amendment.

Once that right is gone, everything is on the table. And remember, the gun control wishlist is as long as it is extreme. Gun ownership would become costly, difficult and rare. Gun owners would be mocked and vilified. They would be shut out of jobs and educational opportunities. They would be banned from public housing and from transporting their guns on common forms of transportation. They would be subject to excise (or “sin”) taxes that portray them as being responsible for crime and social ills. Their voices would be silenced from the media and from “legitimate” academic, scientific and legal discourse. To whatever degree gun ownership continued to exist, it would be forced to the margins of society.

It is our responsibility to prevent that from happening. Any gun owner who sits out this fight is effectively fighting for those who would ban guns. Decades of advocacy, education, work and progress are at stake. All could be lost on the second Tuesday of November this year.

But we also have an opportunity to elect a pro-gun president. In the coming months, as the primary field is winnowed down to the true contenders, we will learn who is willing to advance our rights, who is willing to select pro-Constitution and pro-freedom Supreme Court justices and who is willing to ensure that no American is left behind in any part of our great nation when it comes to the Second Amendment.

America’s best have given their all—some their very lives—to the cause of freedom. Many did so knowing America’s brightest days were still ahead, beyond the horizon of their own experience. We are the beneficiaries of their dedication and sacrifice. However we are called, we must do the same for those who come after us.

Today we are called to stand tall in the upcoming election, to recognize the threat we face and to elect a president who will stand up for the Second Amendment. It is our greatest challenge, but it is also our greatest opportunity and our greatest responsibility.


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