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Second Amendment – two States defy it

Two States are openly defying the Second Amendment after the Supreme Court upheld it, even as four other States comply with it.

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Two of the six may-issue States in the United States are now in open defiance of the Second Amendment. While four of the may-issue States have changed their procedures – though grudgingly – California and New York have not. They have merely issued new euphemisms and passed new laws saying in effect, “Overrule this, Supreme Court!” All of which shows that the only sure defense of individual rights is a careful, diligent, and determined citizen.

State of the Second Amendment

The central, landmark Second Amendment case this term is New York State Rifle and Pistol Association v. Bruen. At issue in that case was New York State’s 109-year-old may-issue gun law. A may-issue law vests in local law enforcement the absolute discretion whether to grant a license to carry a gun in public – or not. (A shall-issue law vests no such discretion and requires adherence to objective criteria only.)

New York State’s law explicitly required any person seeking a gun permit to show proper cause why law enforcement should let him have one. Proper cause typically meant that the person involved was a target, either of a specific would-be attacker or of a particular class of criminals.

The Supreme Court said, “No more.” Clarence Thomas, delivering the opinion of the Court, said the Second Amendment means what it says.

The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Prima facie, or “at first view,” means something that stands unless and until someone can refute it. That phrase puts the burden on the one trying to refute it.

Mr. Justice Thomas identified six may-issue States he knew his ruling would affect. They are California, Hawaii, Maryland, Massachusetts, New Jersey and New York.

GVR orders

But the Court did not stop with its ruling in Bruen. In fact the Supreme Court never does stop with its ruling in a particular landmark case. In fact it always issues a set of orders in other, related cases that it might not have consolidated with the case at hand. These are the GVR or Grant, Vacate and Remand orders. They always follow this pattern:

The petition(s) for (a) writ(s) of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for Such-a-circuit for further consideration in light of Such-a-case.

On June 30, the Supreme Court released its last Order List of the 2021 Term. This list included a slew of GVR orders relating to its opinion cases. The cases that received GVR orders in light of Bruen are:

  • Association of New Jersey Rifle et al. v. Bruck, AG of New Jersey, et al. (20-1507). Remand to the Third Circuit.
  • Young v. Hawaii (20-1639) and Duncan v. Bonta, AG of California (21-1194). Two remands to the Ninth Circuit.
  • Bianchi v. Frosh, AG of Maryland (21-902). Remand to the Fourth Circuit.

Four States seem resigned to obeying the Second Amendment

In the article treating the Bruen case, CNAV asked rhetorically what would happen next in those States. Which ones would comply with the Bruen ruling – and which would defy it? We now know the answer.

Hawaii, according to the YouTube influencer Guns and Gadgets, reported getting 78 applications for concealed-carry permits from Oahu along thus far this year. All but one came in after the Bruen ruling. Beyond that, Mr. George Young’s attorney has threatened to sue the local police chief who delays any such application. Remember that Mr. Young’s case was subject to one of the four GVR orders. Hawaii officials squealed like stuck pigs after the Bruen opinion came down.

The Attorney General for Massachusetts admitted that the “good reason” ground for denying firearms licenses was no longer enforceable. Of course she only grudgingly admitted that much, and bitterly protested the very idea of (Zounds!) private citizens bearing arms. Nevertheless – so far – she will comply with the central holding in Bruen.

New Jersey’s new Acting Attorney General also rescinded New Jersey’s “justifiable need” requirement for gun permits. The instrument of rescission (AG Directive 2022-07) left the rest of New Jersey’s gun law in place. New Jersey has a case back on remand at the Third Circuit.

Lastly, Governor Larry Hogan of Maryland acknowledged the immediate effects the Bruen case would have on Maryland law. Maryland has another GVR case on remand. Maryland residents are already flooding local police departments with permit applications.

Defiance in New York

But New York State projected an immediate attitude of defiance. “Reckless! Senseless!” cried Acting Governor Kathy Hochul, a (what else?) Democrat. The Democrat-controlled New York legislature passed a bill to double down on its gun control ethos. The new Lieutenant Governor said of it,

With this action, New York has sent a message to the rest of the country that we will not stand idly by and let the Supreme Court reverse years of sensible gun regulations.

Another co-sponsor said,

Today, we put the pieces back together and fixed what the Supreme Court destroyed.

Indeed the “proper cause” requirement is gone. But a license applicant must now come in for an interview. (How many interview slots will be available per week, in light of COVID, no one has said.) The successful applicant will need four character references, who must vouch for “the applicant’s good moral character.” In the days of John Adams, an objective criterion of “good moral character” would be easy to define. Not so in this era of “cancel culture.” Tellingly, the applicant must turn over the last three years of “current and former social media accounts.”

Beyond that, the new law defines twenty broad categories of “sensitive place” where no one may carry. Acting Governor Hochul has already she said any place is “sensitive,” in her view.

Expect the New York State Rifle and Pistol Association to be back in court over one or both provisions.

And in California

California Attorney General Bonta (who still must litigate another GVR gun case), like his counterparts elsewhere, rescinded its “good cause” requirement. So, like New York, California will try to keep guns out of private hands through the “good moral character” angle. In this context, the following incident becomes instructive. The California Department of Justice released sensitive information about concealed carry permit holders into cyberspace. They insist it happened by accident. But cybersecurity experts say CA-DOJ failed to take elementary precautions against such a data breach.

California also intends to change its laws to define more “sensitive places,” and raise the concealed-carry permit age to twenty-one.

Gun Owners of California are already threatening to sue over some of these new requirements.

These are very subjective criteria, and I’m confident that they too will be declared unconstitutional.

What part of the Second Amendment don’t they understand?

What part, indeed? New York and California officials have made plain that they do not want guns in private hands. They use the word “commonsense” to describe the gun restrictions they want in place.

Dr. Albert Einstein said this about common sense:

Common sense is the collection of prejudices acquired by age eighteen.

If you doubt that Albert Einstein ever said that, see here. In any case, “commonsense gun legislation” always equates to:

Common sense tells us that no person, except a law-enforcement officer, an active-duty military, a special target, or the bodyguard of such target, has any business carrying a firearm. Ever. Anywhere.

That is not true. James Madison understood perfectly what he meant to imply. We have no reason to doubt that he meant to permit a free citizen to arm himself at least as well as, if not better than, an infantry soldier.

Ironically, Hawaiian officials insist their gun laws predate Hawaii being U.S. territory, some going back to the Kingdom of Hawaii. To read such a statement is to question the judgment and the patriotism of Hawaii’s Attorney General. How dare he defend tyrannical laws that predate the U.S. Constitution taking force and effect over the Hawaiian Islands? Doesn’t he remember the revolution that ended the Regal Period in Hawaii? And that Queen Liliuokalani once threatened to cut heads off to keep her throne?

Do such laws really reduce “gun violence”?

The evidence anyone offers for lower levels of “gun violence” with strict gun control, looks only at crimes with firearms. Firearms are not the only sort of weapon available. Absent firearms, ill-natured people will find, fashion, or invent other weapons. That includes poison, by the way.

And even if such evidence existed, it would not excuse depriving people of the right of self-defense. Nor can anyone show that any deterrent against violence is as effective as a hard target. “The good guy with a gun” has in fact stopped many such incidents.

In fact not one of these officials can claim that they are acting in good faith or in any seriousness. When such incidents occur, in the face of their draconian measures, they have failed on their own terms.

If any of these State officials are serious, they’ll issue weapons according to the objective criteria Mr. Justice Thomas laid out in Bruen. Sheer numbers will avail against the “lone wolf” bent on mass murder. Numbers have so availed, and recently in fact. It happened yesterday at the Greenwood Park Mall in Greenwood, Indiana.

Indiana is a shall-issue State. CNAV is sure that other mall patrons are properly grateful, not only to the “good guy with a gun,” but to the authorities that issued him a permit.

But today we have two States openly defying the Second Amendment. Residents in those States should ask themselves why they elected such defiant officials. In the meantime, let the lawsuits continue.

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

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Donald R. Laster, Jr

Something people need to remember is that Amendment 2 which is:

“A well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.”

could have been written as:

“A well regulated Militia, being necessary to the security of a free State, shall not be infringed. The right of the people to keep and bear Arms shall not be infringed.”

No State has the authority to control or issue licenses for Arms of any sort. Remember, Arms means weapon. Even the “shall issue” type laws are unconstitutional. Unless one is subject to Amendment 13 the Amendment 2 allows EVERYONE to keep and carry weapons.

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