This Election Could Determine The Future Of The Second Amendment

posted on March 2, 2024
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In my 30 years with the NRA, I have never seen an election that is more important than the one we face in 2024. I know it may seem like we say this every four years, but that’s because it’s true. All of our gains could be gone in an instant if gun owners don’t turn out at the polls in November. If you value your rights as a gun owner and a citizen of the world’s last, best hope for liberty, you cannot afford to be on the sidelines of this year’s general election. It is easily the most important of our lifetimes.

The potential Republican and Democrat candidates could not be further apart when it comes to the Second Amendment.

The situation is very similar to the 2016 election when the future direction of the U.S. Supreme Court (and with it the Second Amendment) was effectively on the ballot. President Trump’s victory ensured that the federal judiciary, and particularly the Supreme Court, would remain true to the original understanding of the Constitution and Bill of Rights. He indeed built a mighty wall that remains intact to this day: a firewall of Originalist judges and justices in the mold of the late, great Antonin Scalia, author of the landmark 2008 Supreme Court decision, District of Columbia v. Heller.

That was the case that ignited the modern Second Amendment renaissance. Yet the promise of Heller’s reassertion of the Second Amendment could have been cut short with Justice Scalia’s shocking and untimely death in February 2016. Then-candidate Trump understood the gravity of the situation and made the wise and far-reaching decision to prioritize Originalist judicial appointments as a centerpiece of his administration. Originalism is a method of constitutional interpretation that centers on the public understanding of the document at the time of its adoption and the Bill of Rights’ later application to the states (known as “incorporation”) following the Civil War.

Originalism preserves our sacred, fundamental rights, the same freedoms so much blood has been shed to protect throughout American history. Proponents of a “living Constitution,” by contrast, would empower activists in the government and judiciary simply to read rights out of our founding documents whenever they became inconvenient to the political ambitions of the day. No right was more imperiled by this pernicious ideology than the Second Amendment, which living constitutionalists insisted had outlived its usefulness—and supposedly its binding effect—with the advent of America’s modern standing Army and professional police forces. There was, they asserted, no longer an individual right to keep and bear arms.

Heller repudiated that lie in the clearest possible terms. “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table,” Justice Scalia wrote. These included Washington, D.C.’s illegitimate attempts to ban handguns and the possession of usable firearms within one’s home. He continued: “it is not the role of this Court to pronounce the Second Amendment extinct.”

Heller was followed in 2010 by McDonald v. Chicago, another Supreme Court decision that made clear states and localities are also bound to respect the Second Amendment’s protections. Thus, Chicago had no more authority to ban handguns than did the federal enclave of Washington, D.C.

For years after McDonald, there was no appetite in a Supreme Court closely divided between originalists and living constitutionalists to revisit the Second Amendment. With Scalia’s death, however, there was a decisive opportunity to tip the balance away from originalism and in the direction of modern legal activism. Then-President Barack Obama’s choice for this transformation was none other than Merrick Garland, now leading under Joe Biden the most partisan, politicized U.S. Department of Justice (DOJ) in American history.

Your NRA saw through Garland’s veneer of judicial professionalism and exposed him for the anti-Second Amendment activist he is. We explained how as a federal appellate judge he voted for a do-over of what was then the most-important pro-Second Amendment decision in American jurisprudence, the same case that would go on to generate the Heller decision in the Supreme Court. When a three-judge panel on the D.C. Circuit Court of Appeals ruled against D.C.’s gun bans in that case, Garland would have given the District another chance to have that ruling overturned by the entire circuit court. A majority of his circuit colleagues, however, voted to leave the decision undisturbed, and D.C. officials instead had to face the Supreme Court.

Biden openly characterized the gun industry as “the enemy” of his administration and the American people.

Fortunately, the pro-gun Senate of 2016 decided it should be the American people who chose which of the presidential candidates got to pick Scalia’s successor, and Garland’s nomination never came up for a vote. President Trump prevailed and proved true to his word; during his term, he appointed three originalist Supreme Court justices, as well as scores of like-minded judges to the lower federal courts.

Trump’s makeover of the federal judiciary finally brought the potential of Heller to fruition with the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which recognized the Second Amendment’s right to bear arms in public for self-defense. That decision invalidated New York’s discretionary licensing system for public carry, which had required applicants to prove they had a special need to carry before they could be issued a license. Just as importantly, it reasserted Heller’s standard of review for Second Amendment cases. The court stated that when conduct is protected by the Second Amendment’s plain text, the government can only subject it to regulation by demonstrating “the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Simply put, laws that restrict the right to keep and bear arms must have analogues dating to the founding era to survive Second Amendment challenges. This is as strong an assertion of originalism as exists in American law.

Every justice appointed by President Trump voted with the majority in Bruen, giving the decision a six-to-three majority. Had Hillary Clinton made those appointments, the decision would have undoubtedly gone the other way, and the Second Amendment would have been rendered a dead letter.

A federal judiciary shaped by President Biden for another four years poses an immediate threat to our right to keep and bear arms.

Biden campaigned as a unifier, promising a return to normalcy and bipartisanship after what he characterized as the divisiveness of the Trump administration. Nothing could have been further from the truth. If there is one thing that has characterized the Biden administration, it has been his use of government power and influence to persecute, marginalize and censor his political opposition.

No one has experienced this tendency more than America’s gun industry and the law-abiding Americans it serves. Biden openly characterized the gun industry as “the enemy” of his administration and the American people. He and Garland have directed the ATF to take a “zero tolerance” approach to oversight of licensed gun dealers, once the allies and friends of federal law enforcement in pursuing their joint interest in combatting illegal firearms trafficking and diversion. Now, the slightest clerical mistake can result in dealers losing their longstanding businesses and livelihoods.

Meanwhile, ATF has produced one legally dubious gun-control rulemaking after another. They have assumed the authority to redefine the meaning of “firearm;” to reclassify braced pistols as the legal equivalent of machine guns; and to label hobbyists making occasional gun sales as “dealers” subject to federal licensing and regulation. Decades of settled legal understandings, enforcement policies, and professional goodwill have been reversed.

The White House wastes no opportunity to blame law-abiding gun owners and firearm businesses for the acts of psychopaths and violent criminals for whom the laws are irrelevant, even as Biden’s party pursues policies to coddle hardened convicts and to excuse their behavior as the byproduct of injustice.

Biden even established a taxpayer-funded “White House Office of Gun Violence Prevention” staffed with career anti-gun activists. Its early moves have included coaching states on how to crack down on Second Amendment rights, with model gun-control legislation produced by DOJ. The administration also instituted a widespread “pause” on otherwise-legal firearm exports, seemingly just because it could.

And Biden’s Democrat party has embraced gun control as never before. One possible Biden alternate, Gov. Gavin Newsom (D-Calif.), has even proposed rewriting the Second Amendment to require gun bans and other wide-ranging controls, rather than restricting them. Nothing could illustrate anti-gun Democrats’ approach to the Constitution or to the right to keep and bear arms more clearly than that.

There is still much to be determined about the 2024 election, including the ultimate contenders. But the stakes for freedom could not be higher. Stay tuned here for further information and, above all, stay involved. The consequences of inaction could well be irreversible.


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