Trump Judicial Appointees Lend Extra Weight To Second Amendment Litigation

posted on December 22, 2020
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In the closing months of 2020, Americans were riveted by the dramatic spectacle of national politics, and with good reason. Freedom was on the ballot to a historic degree. 

But the genius of our constitutional republic is reflected in the many checks and balances the Founders built into the American government. The ambitions of the political branches are still subject to review by the courts. Judicial rulings can curb overreach and the creeping abuse of power. 

The good news for Second Amendment supporters is that one of the most important and enduring legacies of President Trump’s tenure in the White House has been and will be his judicial appointments—most recently with the nomination and confirmation of Justice Amy Coney Barrett. No president before him has acted with more swiftness and urgency in appointing judges who will help cement our founding ideals into American law, including our right to keep and bear arms. 

And this, in turn, lends even greater significance to the many legal efforts your NRA is shepherding through the federal courts to advance these rights. 

Justice Barrett was the third of Trump’s Supreme Court appointments, a remarkable achievement for a first presidential term. Like Neil Gorsuch and Brett Kavanaugh before her, she is committed to interpreting the Constitution and the Bill of Rights according to their original meaning, or how the public would have understood them at the time they were adopted. This was the same analytical approach that Justice Antonin Scalia used in authoring the landmark 2008 decision District of Columbia v. Heller, which authoritatively resolved the status of the Second Amendment as an individual right grounded in the concept of defense. 

Since 2008, the NRA has patiently continued the painstaking work of supporting Second Amendment cases through the long march towards the U.S. Supreme Court. 

A review of a few of these pending cases shows there is still ample opportunity for the Supreme Court to reverse the current trend of treating the Second Amendment as a second-class right. 

Incredibly, 12 years after the Heller decision, some states and localities still deny that a person has a right to “bear” arms outside their own home without a special “need” to exercise their rights. More incredibly still, some federal judges also pretend this is so. 

The NRA is thus supporting cases that challenge these “may-issue” schemes in several jurisdictions. 

In New York, for example, an applicant for a carry license must show “facts demonstrating a need for self-protection distinguishable from that of the general public.” In practice, this means anti-gun localities and officials can deny applications at their own discretion, even if the applicant meets all other objective criteria established in the law. The NRA is supporting a Second Amendment challenge to this restriction in New York State Rifle and Pistol Association v. Beach. That case has now worked its way through the lower courts and is primed for a possible appeal to the U.S. Supreme Court.

In Hawaii, a license to carry is theoretically available in extraordinary circumstances upon a showing of good cause. In practice, however, no such license has been issued for non-professional purposes in over 20 years. The NRA filed a friend-of-the-court brief in a Second Amendment challenge to this charade in the case of Young v. Hawaii. Arguments were heard last September before the full Ninth Circuit, and a decision remains pending as this article goes to press. 

The NRA is also supporting the California case of Flanagan v. Becerra, which argues that California’s carry license scheme is tantamount to a discretionary ban administered at the whim of local officials. The trial court issued summary judgment in favor of the state, and the plaintiffs appealed to the Ninth Circuit. That appeal is currently stayed, pending the outcome of the en banc decision in Young v. Hawaii. 

The NRA is challenging restrictions on magazine capacity in both California and New Jersey. The California case, Duncan v. Becerra, has already resulted in decisions invalidating the state law before the trial court and a three-judge panel of the Ninth Circuit. The state, however, has petitioned for rehearing by an en banc panel, a request that remains pending as this article goes to print.

The NRA is also challenging New Jersey’s 10-round magazine limit in Association of New Jersey Rifle & Pistol Clubs v. Grewal. After losses at the trial and appellate level, the NRA asked for en banc review by the full Third Circuit Court of Appeals. 

These are just a few of the many cases your NRA is pursuing to vindicate the Second Amendment. Whatever the state of play may look like at any given time, you can be sure we will continue fighting in every arena to ensure that the right of the people to keep and bear arms shall not be infringed!


Don Young
Don Young

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