Playing Constitutional whack-a-mole with gun laws

• Posted on 18 January 2018
• By Write Winger
• 0

Should Republican lawmakers from anti gun rights states, whose constituents are praying for relief from burdensome and unconstitutional state infringements on their rights, band together with the Congressional Second Amendment Caucus and present a federal preemption bill?

In 1976, D.C. banned the possession of a handgun. That ban was challenged, and in 2008 was found unconstitutional in the Heller decision as which affirmed an individual's right to "keep" arms in common use, unconnected to militia service.

In 2009, because people were now allowed to possess handguns, D.C. banned the carrying of a gun. That ban was challenged and struck down in 2014 in the Palmer decision as an unconstitutional violation of "bearing" arms.

So D.C. tried again to prevent people from exercising their right to bear arms by enacting a "good reason" provision that allowed authorities to grant (or deny) a license to carry based on special need. And now this law has been struck down.

The courts can and should only go so far with their rulings. While some gun rights supporters would gladly accept a judicial activist's ruling that said, "everyone gets whatever gun they want, whenever they want it, wherever they want it," the courts cannot (or rather should not, because they do from time to time) make naked decrees stating what laws are or what laws should be; they lack the constitutional authority to do such things. They're limited to the confines of the case before them, ruling on the wording, scope, and interpretation of the law in question, or whether a challenged law is constitutional or not.

Making just laws and protecting the liberties of the people is the job of the legislature, but as we know, they take pride in bucking their responsibilities. D.C. proves over and over that they cannot be trusted to do their job within those confines, and they never learn from each ruling that slaps them down to keep their laws off the people's rights and liberties.

They merely see it as a detour to their main goal. Can't ban guns? Ok, we'll ban carrying them. Can't ban carrying them? Ok, we'll make people get special permission that we won't give. Can't require special permission to carry, now what? What will be the next law they'll try to get away with? Making the cost of a permit unaffordable to most people? Make so many places a “gun free zone” that there’s no place to lawfully carry?

In this perpetual game of Constitutional Whack-A-Mole, whenever one law is challenged and overturned, another pops right up in its place, written by the same people who the courts have said violated the rights and liberties of the people, taking years to work its way through the judicial system.

While these laws must be challenged wherever they exist, there needs to be as much emphasis toward going on offense as we have defense. We need to use all the Constitutional tools at our disposal to get in front of these bad laws before they're written, even if getting there is a long shot.

For however long it may last, the Presidency, the House, and the Senate are under Republican control, a party that claims to support the right to keep and bear arms. They can pass federal laws that preempt and supersede laws that D.C. or states like California, Maryland, New York, or New Jersey pass, per the Supremacy Clause (Article VI, Clause 2 of the U.S. Constitution). The federal government has a duty under the 14th Amendment to guarantee States don't deny people their fundamental rights.

Republicans are going to need a solid issue to run on for the 2018 midterm elections to shore up their base who isn't too happy with them over their promises to repeal and replace Obamacare. A study published by Social Science Quarterly shows a person's support for gun rights and gun ownership is the most reliable predictor of voting patterns and political affiliations. Republicans would be wise to consider protections and clarity for gun rights throughout the States, most notably for States that do not recognize the right as fundamental, creating pitfalls for the average law abiding gun owner that open them up to criminal prosecution.

Should Republican lawmakers from anti gun rights states, whose constituents are praying for relief from burdensome and unconstitutional state infringements on their rights, band together with the Congressional Second Amendment Caucus and present a federal preemption bill akin to the Civil Rights Act for the right to keep and bear arms, it may very well lead them to victory in 2018 which is most important to them... and as a "bonus", help restore our rights which is most important to us.