The Right Not to Keep and Bear Arms?

The left is busy designing a new and seemingly absurd civil right, which threatens to undermine an actual right under the 2nd Amendment. This new “civil right” is to live in a society free of guns and/or “gun violence.” Bolstered by the success of the gay rights movement, anti-gun activists are already attempting to impose gun control by urging the federal government to force states to impose regulations under federal civil rights and disability statutes, by filing civil suits under the same theories, and by pursuing dubious appeals to public health (as in the anti-tobacco crusade.) They hope activist judges will further manipulate the 14th Amendment and statutes derived from it, to impose countervailing rights to that of keeping and bearing arms. Like the gay rights movement and the campaign against cigarettes, the focus will be on victimization (at the expense of personal choices and responsibility) in the expectation that American political views on guns will “evolve” over time with the helpful analysis of elite experts and unelected judges. Eventually the 2nd Amendment, hopes the left, will become effectively irrelevant through a combination of judicial fiat and the mobilization of suitably brainwashed polity. 

Some recent decisions by federal appellate courts and the Supreme Court have reiterated basic 2nd Amendment principles, finding the right as individual rather than collective, and may give some gun owners a false sense of security. But leftist anti-gun activists and lawyers are not discouraged, and with their greedy helpmates in the personal injury bar will press cases in lower courts in hopes that another Democrat administration will alter narrow judicial balances. Besides, they have little choice. As President Obama ruefully admitted, politically (at least on a national level) attempts to restrict gun rights have gone nowhere. 

The Sandy Hook killings, brutal, demented, unbelievably horrible, and committed by a nutcase armed with an AR-15 “assault rifle”, offered the left as great an opportunity as it ever had to shift public opinion on gun control. Australia was the model (and probably the closest analog to the United States internationally), where a similar massacre allowed gun control activists down under to turn public revulsion into political capital and the imposition of draconian nationwide gun restrictions. However, outside of a few very blue east coast states (Connecticut, New York, and Maryland) the left was unable use the massacre to mobilize a national political movement for stricter gun control.  The left’s ghoulish crisis manipulators tried to get too much too soon. But their way forward is to continue to use the victims of Sandy Hook and other gun-related crimes to “enlighten” the public, while at the same time pressing court cases with sympathetic judges to vindicate “victims’ rights.”  

Part of the template was laid out in the wake of the recent Charleston killings by Washington Post op-ed columnist E.J. Dionne, who called for a new anti-gun activist movement, and concluded with the theory that he and other Americans had the “right not to bear arms.” Dionne cited a liberal pollster friend who suggested that a public health movement educating Americans about the danger of guns, similar to the anti-tobacco crusade, could “disarm the NRA” and “make the 2nd Amendment moot.”  At the time I chalked up Dionne’s formulation to confusion and an attempt to be cute. It did not occur that he was explicating an actual legal “liberty” in any realistic sense of the term, since rights exist in relation to governance, and governance in this country (or any other country I can think of) had never sought to impose the private ownership of weapons on people.

But a day or two later in Obergefell v. Hodges, the Supreme Court found in the 14th Amendment a “liberty” to create one’s own personal identity. So far, judicially, that “personal identity” right extends only to being gay. But it will evolve, including claims that some peoples’ personal identity (that is their rights under the 14th Amendment) are offended by the presence of guns in the community. 

Already, activist lawyers in Illinois are invoking plaintiffs’ rights under Title VI of the Civil Rights Act and under the 14th Amendment, to sue suburban localities on behalf of inner city Chicago residents. The outlandish claim is that suburban gun sales are responsible for inner city Chicago carnage.  One of the attorneys behind this litigation, believing that Obama is way too soft on guns, has also urged the president to sic the Justice Department on such localities under the same theory, as well as under the Americans with Disabilities Act (to force background checks on private sellers to prevent mentally ill people from using guns to kill themselves.) This also neatly ties in the issue of suicide to gun control, since the majority of “gun deaths” in this country are suicides.   

The greatest problem with the Supreme Court’s ruling in Obergefell, as Justice Thomas discussed at length in his dissent, is the complete misconstruction of concept of liberty, as something that the government imposes (forcing states to issue marriage licenses to gay couples) as opposed to something that is possessed by a person that the government cannot take away. 

As a practical matter, what that mischievous ruling proves is that if you want to undermine a fundamental right in this country (like religious freedom) the best way to do it is by asserting a stronger countervailing right (the right to one’s personal identity.) That’s especially necessary when you lack the political strength to enact legislation that nibbles away at a right -- as we’ve been doing in this country since its founding. So finding “rights” in opposition to the 2nd Amendment is clearly where gun control activists are going now and will go increasingly in the future.

Gun control lawyers (in concert with the personal injury bar) will use the specious but nonetheless precedential logic of Obergefell to assert plaintiffs’ constitutional liberties to be free of “gun danger”, or “gun fear”, or the consequences of “gun violence” in their communities. This might be a “right” based on personal identity (I hate guns!), or disability (I might buy or borrow a gun and kill myself!), or public health (too many gunshot victims are taking up hospital space!) or as the current Illinois cases go, on disparate impact to minority communities (black people in the city are shooting each other and some of the guns were purchased from white people!) Really under the false legal logic of Obergefell the list of potential claims is virtually limitless, and creative and unscrupulous lawyers can be counted on to use them. 

For now, any plaintiff’s attorney pursuing claims like these will be happy just to get past a motion for summary judgment. Even by the largely corrupted standards of today’s politicized courts, it will be pretty hard to state a legally sound case to force local governments to impose restrictive gun control laws. But fundamentally, the opportunity exists in the wake of Obergefell and you can count on the anti-gun crowd to keep on trying. 

Add to this litigation the ongoing public anti-gun “wellness” campaigns (beginning with the indoctrination of kids), and (should it happen) another Democrat administration beginning in 2016, and our rights under the 2nd Amendment may come under an unprecedented threat.  

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