While the confirmation of Justice Gorsuch has created a political storm, perhaps he can help protect the Second Amendment and support common sense legislation?
Before we get to what Justice Gorsuch will face, we need a small amount of background. Back in 2014, U.S. District Judge Anthony Ishii of Fresno ruled that gun owners, who wish to purchase another firearm, should not be subject to the 10 day waiting period. The rational, according to politicians, is that we must wait for 10 days as a cooling off period for our safety. CBS Sacramento reported Ishii as stating:
“There is no evidence that a ‘cooling off period,’ such as that provided by the 10-day waiting period, prevents impulsive acts of violence by individuals who already possess a firearm. A waiting period for a newly purchased firearm will not deter an individual from committing impulsive acts of violence with a separate firearm that is already in his or her possession.”
Kamala Harris is not one to take such a loss sitting down, and the case was taken to the 9th circuit court of appeals. There, a 3 judge panel determined that it was perfectly acceptable to make people wait, because there was no Internet when the Second Amendment was written. The entire opinion can be read here. The rational driving the opinion is deeply flawed. Prior to 1968, there were no licensed firearms dealers, and prior to 1993, there were no laws concerning background checks for gun buyers. In the “old days”, if you had the money, you walked in and purchased the firearm. You could then take it home on the spot. If you didn’t mind the wait, you could order a firearm through Sears Roebuck, and have it mailed right to your front door.
The majority of states perform instant background checks. This requires no waiting period, even for new gun owners. Since the decisions are not written on parchment anymore, and mail isn’t delivered by horseback, I don’t feel this is a sound basis. It is much along the lines of people saying there were only muskets when the Second Amendment was written. That is also a common myth, and the rational is flawed. We don’t say that the First Amendment doesn’t apply to Internet based news, or other electronic forms of communication, such as television or radio, none of which existed.
The 9th circuit court knows their ruling was flawed, and denied a petition by CalGuns Foundation to have an en banc hearing by the whole court on the matter. I find it deeply disturbing that the court would deny the request. When a ruling is sound, in most cases the en banc hearing does not change the outcome. CalGuns Foundation isn’t going to accept the ruling and reported last week that they are going to bypass the the 9th circuit, and submit the case to the Supreme Court.
“In its decision to ignore the trial court’s Findings of Fact and Conclusions of Law as well as longstanding principles of appellate review, and now in its refusal to correct the 3-judge panel decision’s manifest errors in all regards, the Ninth Circuit Court of Appeals has made it crystal clear that it has no intention of following the Supreme Court’s precedent and protecting Second Amendment rights from unconstitutional, burdensome, and irrational laws.
Given its record here and in previous cases like Peruta v. San Diego, the Ninth Circuit’s interest in en banc re-hearings is apparently limited to only those cases in which the 3-judge panel decision comes down on the side of individual liberty and Second Amendment rights, and then only so that it can reverse those pro-freedom decisions.
We maintain that the Ninth Circuit’s panel opinion was patently wrong as a matter of law. Not only did the panel incorrectly decide the Second Amendment issues in favor of the State of California, but in doing so it ignored important legal rules that govern the review of a lower court’s judgment after a trial.
By refusing to correct the panel’s decision here, the Ninth Circuit has dared the Supreme Court to overturn them or bind tens of millions of law-abiding people to the tyrannies imposed on them and their right to keep and bear arms by the State of California and other similarly-hostile governments.
It is our intention to petition the Supreme Court to reverse the Ninth Circuit’s wholly-improper decision in this case.”
Now that Gorsuch is on the court, how will he side with the other justices in regards to Second Amendment cases? It is time for the Supreme Court to begin hearing these cases. There is enough inconsistency among the circuit courts; that certain cases must be heard. There is a laundry list of cases that the court has refused to hear. While the court is intended to remain impartial and separate from other branches of government, we know that not to be true. Some urging from the current administration should prompt the court to accept some of these cases to be heard.
What Gorsuch, Thomas, Kennedy, do have in their favor is an administration across the board that leans right. Some more right than others, but right none the less. In fact this leaning can go down to the state level as well. We have seen 14 states go constitutional carry, and many more are headed in that direction. People wanting to push anti-gun agendas are finding it harder and harder in most states to do so. The financial cost for a vote against guns is astronomically high, and the political fallout can be massive. My wish list for SCOTUS is as follows. Shall issue concealed carry. This does not address the draconian and insane laws and requirements in California, but it does make it clear, that unless there is reason to deny, you are approved, period. Next would be to rule that semi-automatic rifles and normal capacity magazines are in fact protected under the second amendment. If we apply common use, and strict scrutiny, this is an open and shut case. Lastly, I would like the 10 day wait period addressed. We have the technology, and ability to facilitate instant checks. Unless there is overwhelming evidence that allowing an individual to be denied a right under the guise of safety, it should be null and void. Gorsuch and the rest of the justices will have their hands full, however these questions must be addressed.