In the Courts: No Surrender
This winter, Americans honored the 70th anniversary of the Pearl Harbor attack and the sacrifices of those who defended our nation there. Shortly after the attack, Japanese admiral Isoroku Yamamoto, who planned the attack, wrote, “I am looking forward to dictating peace to the United States in the White House in Washington.”
Today, anti-gun extremists have just as loudly celebrated a handful of decisions in which lower-level federal courts have agreed with their positions. For example, Dennis Henigan, longtime top lawyer for the Brady Campaign to Prevent Gun Violence, claims that these recent decisions show the NRA is “dependent … on the tactics of political threats and intimidation,” but “[w]hen the task is persuasion … the gun lobby has been firing blanks.”
Let’s take a closer look and see if Henigan should be quite so excited.
The issues in the cases are varied. In one, a federal district judge upheld Texas’ law prohibiting issuance of concealed handgun licenses to people under 21, who are treated as adults for virtually every other purpose under the law. In another, a federal judge in Washington, D.C., upheld the Obama-Holder Justice Department’s decree that firearm dealers in the four border states notify the Bureau of Alcohol, Tobacco, Firearms and Explosives about customers buying more than one semi-automatic rifle in a five-day period.
In the Texas case, Jennings v. McCraw, Judge Sam Cummings ruled that it was unnecessary to address the state’s discrimination against young adults because “the right to carry a handgun outside of the home … seems to be beyond the scope of the core Second Amendment concern articulated in Heller [v. District of Columbia].”
Unfortunately, this is only the most recent of several court decisions that have misread Heller the same way. It’s a misreading because the plaintiffs in the Heller case only challenged Washington, D.C.’s limits on gun possession in the home, rather than its restrictions on carrying firearms outside the home. Since that’s the only question that was asked, it was the only question the Supreme Court answered.
In fact, the Supreme Court has never said the Second Amendment doesn’t apply outside the home. In Heller, it said that the home is the place “where the need for defense of self, family, and property is most acute”—implying that there are other places where the need is less acute, but still exists. And the court suggested that it would uphold bans on carrying guns in “sensitive places”—which implies that carrying in places that are not “sensitive” would be protected under the Second Amendment.
Of course, this decision is not final; we’ve already appealed it to the U.S. Court of Appeals for the Fifth Circuit. In the meantime, other NRA-supported cases about the right to bear arms outside the home are working their way through the courts.
For example, the same day as the Texas decision, a federal judge in Chicago allowed NRA-supported plaintiffs to move ahead with a challenge to that city’s laws against carrying firearms away from one’s home or place of business. Other pending cases include Peruta v. County of San Diego, which challenges discriminatory permit issuance under California law, as well as Shepard v. Madigan, challenging Illinois’ complete denial of any lawful way to carry firearms for self-defense outside one’s home or place of business.
Similarly, the border state registration case is only an initial decision—and has also been appealed. The case was brought by two NRA-backed firearm retailers and by the National Shooting Sports Foundation; the plaintiffs pointed out that the “demand letter” imposing the registration scheme was sent to 20 times more dealers than had been subject to any similar “demand letter” before. Still, the court managed to find it “limited in scope.”
However, this is only one of several cases, in different judicial circuits, challenging the federal government’s action. Just as any of the carry cases could eventually result in judicial protection for the right to bear arms outside the home, any of the multiple sales cases could end the border state registration scheme by the time the appeals are done.
In that respect, our current court battles remind me again of the history of World War II. Despite early defeats, the Allies’ resolve remained strong, and free people around the world worked and fought hard for an ultimate victory. Less than four years after Pearl Harbor, Japanese Emperor Hirohito surrendered, euphemistically declaring that “the war situation has developed not necessarily to Japan’s advantage.”
The recent court decisions should only remind us that the fight to protect the Second Amendment will be a long one—and that the historic stakes, including several potential Supreme Court seats, demand our very best in this critical election year.
For the latest news on these and other NRA-supported cases and to subscribe to our online Legal Update newsletter, go to www.nraila.org/legalupdate.
James W. Porter II, PRESIDENT
Allan Cors, FIRST VICE PRESIDENT
Pete Brownell, SECOND VICE PRESIDENT
Wayne LaPierre, EXECUTIVE VICE PRESIDENT
Edward J. Land Jr., SECRETARY
Wilson H. Phillips Jr., TREASURER
Kyle Weaver, EXECUTIVE DIRECTOR, GENERAL OPERATIONS
Christopher W. Cox, EXECUTIVE DIRECTOR, INSTITUTE FOR LEGISLATIVE ACTION