No one likes to admit when they are wrong. Though in this case I will make an exception. In a recent article called “What The Heller?” I lamented that by heavily compromising the originalist analysis of the Second Amendment in the case of District of Columbia v. Heller, 554 U.S. 570 (2008), conservatives may have doomed the amendment to the trash heap of history. At a time when many people were celebrating that this would be the parchment barrier that protected the Second Amendment—which (rather ironically) had failed because it was taken as a self-executing parchment barrier—the Court’s refusal to grant cert on lower court challenges like the recent Ninth Circuit case of Young v. Hawaii that declared there was no evidence an amendment that protected a right to bear arms meant it protected a right to actually bear arms, things looked bleak.
Apart from two dissenting opinions filed by Justice Clarence Thomas lamenting the Court’s consistent denial of cert on every Second Amendment case, the bench has remained silent as lower courts intentionally misread Heller. A livid Justice Thomas included such scathing criticisms as;
“The Supreme Court is treating the second amendment as a second-class right. The court routinely grants review in every case involving free speech, abortion, Fourth Amendment search and seizure. You name it, they are adjudicating on it. Any and every possible provision of the Constitution you please, they will take a case. But they treated the second amendment like a leper, they don’t even want to touch it.”
This all culminated with a growing number of constitutional scholars asking the same question I speculated on in that previous article. Is the Second Amendment a dead letter?
This is one instance where I am pleased to report, I may well have been wrong. Some recent developments have offered a chance for an optimistic view of the future of the Second Amendment. But much like the Heller opinion, that optimism comes with a caveat that should not be overlooked.
Let’s break down several new developments involving the Supreme Court and the future of the Second Amendment, the good, the bad & one ugly truth that cannot afford to be overlooked.
Last Monday was a very good day for the Constitution. The Supreme Court issued its opinion in the case of Caniglia v. Strom where it struck down warrantless gun seizures. The only thing that could have been better would be to live in a country where we don’t need the Supreme Court to tell the police that stealing firearms from a person’s home without a warrant is unconstitutional. This case began with an incident of Rhode Island police stealing a man’s guns from him home without a warrant after taking him in for a mental health evaluation. The Court struck down this warrantless gun confiscation with a unanimous 9-0 ruling. Specifically they ruled that the “community caretaker exception” to the Fourth Amendment does not extend to the home.
Police generally cannot conduct searches of private property without consent or a warrant.
In Cady v. Dombrowski, the Supreme Court held in 1973 that police may conduct warrantless searches related to “community caretaking functions,” but only for “vehicle accidents.” Since then, the principle has become “a catchall for a wide range of responsibilities that police officers must discharge aside from their criminal enforcement activities,” the First Circuit Court of Appeals stated in the Caniglia case.
The community caretaking doctrine holds that police don’t always operate as law enforcement officials investigating wrongdoing, but sometimes as caretakers to prevent harm in emergency situations.
Edward Caniglia has no criminal history and no record of violence. He had been married to his wife for 22 years when, on Aug. 20, 2015, they had a disagreement inside their Cranston, Rhode Island home. The argument escalated. He produced an unloaded gun and said, “Why don’t you just shoot me and get me out of my misery?”
Worried for his safety, his wife asked police to conduct a welfare check. Edward calmly explained the theatrics of the previous day, and according to the officers on scene he seemed perfectly normal. Still the officer in charge decided that Edward posed a danger to himself and others. He insisted Edward be taken, by ambulance, to a local hospital for a mental health screening. He agreed to go when he was threatened with an arrest and booking if he wouldn’t go to the hospital. The police assured him they had no intention of taking his guns when he left.
As should surprise no one, those police lied. As soon as he left they found and seized his guns. His wife never asked them to remove the guns and when she saw what they were doing she questioned them about why they were being taken. The officers then lied to her as well and told her that before he left, Edward had consented to their confiscation.
What’s more, after illegally seizing the guns, the police never told Edward that they had taken them from the home. When he figured that out and went to get them back the police arbitrarily refused to return the weapons. Caniglia sued, arguing the community caretaking exception shouldn’t apply inside “the home—the most protected of all private spaces.”
The district court ruled against the petitioner and on appeal the First Circuit enjoined the decision and affirmed the legality of the seizure solely on the grounds that the decision to remove both the petitioner and his firearms from the premises fell within the “community caretaking exception.”
If you are anything like me, that last sentence may bear repeating to grasp it’s most troubling assertion: removing the petitioner fell within the “community caretaking exception.”
If the theft of an individual’s firearms is an especially egregious example of over-stepping Fourth Amendment search and seizure protections because firearms have a Second Amendment protection as especially important property because of their role in protecting individuals natural rights of self-defense, is it not more egregious that these same courts are suggesting the community caretaking standard also extends into the home to kidnap the individual in question without an arrest warrant or probable cause that the person has or was in the process of committing a crime? We are talking about an unlawful seizure of the very self that we own firearms to defend.
However, there is plenty to like about this case. That even the three liberal justices were ready to sign onto a ruling that protected our Second Amendment rights, even if that protection is by proxy, is a pleasant surprise.
There is an upcoming case that the Second Amendment community has been very excited about, and which even gun rights pessimists like myself see as a potential chance to take a step in the right direction toward expanding the right to keep and bear arms. It would go beyond the right protected in Heller to keep a gun in the home and confirm the right to carry a gun on your person.
But much how like the Heller decision gave us as much to worry about as it did to celebrate, it is already clear from the Court’s petition to grant cert in this case that it may not be the big win for gun rights many are hoping for. To understand why we need to examine the court’s to grant review on a limited question presented:
Whether the State’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.
Contrast this with the original question presented (QP) by the petitioner’s attorney, Paul Clement:
Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.
There are 5 major differences between Clement’s QP and that to which the Court granted review:
First, the Court’s QP focuses on the state’s decision to deny “concealed-carry licenses” to the petitioners. Clement’s QP challenged the law on its face, and as applied. Is the Court’s decision now limited to an as-applied challenge, rather than a facial challenge? Might the Court leave open the possibility that other may-issue regimes are unconstitutional? Are there some unique aspects of the New York law that would distinguish it from other may issue regimes? Is there the possibility the Court will need to remand for further explication of the regime?
Second, the Court’s QP refers to a petitioner that could file an “application.” That category of individuals would seem limited to a natural person. One of the Petitioners is the New York State Rifle & Pistol Club. Is that party a petitioner that could file an “application”? Or will the Court limit relief to the named parties?
Third, the Court’s QP refers to “applications for concealed-carry licenses for self-defense.” Clement’s QP refers to “ordinary law-abiding citizens from carrying handguns outside the home for self-defense.” The Court’s question is far narrower. It only concerns “concealed-carry licenses.” Clement’s petition refers to carrying a gun more broadly outside the home. By stripping the reference to “outside the home,” the Court avoids resolving a thirteen-year old mystery of what exactly are “sensitive places.” (This refers to one of those deviations from Original Public Meaning found in the Heller opinion that left a number of constitutional scholars and Second Amendment advocates rightfully worried about this deviation and it’s potential consequences). Also, the Court’s question would close the door to a claim for open-carry. But why would the Court even consider this issue? New York does not permit open carry. I am nervous this QP is setting up a punt: a remand to consider whether permitting open carry would be consistent with the Second Amendment.
This issue has far more serious ramifications, if it is in fact what the Court is setting up for. We know that Biden is just itching for a reason to pack the Supreme Court. He has assigned a task force to study the matter and I think any reasonably intelligent citizen across the political spectrum would say this is a real possibility in the near future.
Biden has been looking at all kinds of ways to expand gun control. And he has been very open that two issues from the Court warrant a special reason for him to move straight to court packing: gun control and abortion.
In fact, during oral arguments for Caniglia v. Strom on March 24, Biden had Department of Justice lawyer Morgan Ratner testify in support of the city of Cranston’s position, arguing police had to be free to act in particular emergencies.
“Although there have been a lot of questions this morning about whether this is emergency aid or exigent circumstances or community caretaking or something else, the label you give it is not nearly as important as the principle. And the key principle is if someone is at risk of serious harm and it’s reasonable for officials to intervene now, that is enough,” Ratner said.
We now also have this upcoming Second Amendment case he is very much opposed to, as well as the upcoming abortion case that has the potential to seriously limit Roe. If the Court punts once again on this case and gives Biden the time to move onto court packing to preclude any future possability of Second Amendment victories, I would be shocked if the president didn’t take up that de facto invitation. And in a paper from the commission that he assembled to consider court packing, which is now available to read in a recent law review article “The Endgame Of Court-Packing,” we are talking about a 39 Justice Supreme Court. I wish I was exaggerating, but I’m not.
Fourth, Clement’s QP refers to “citizens.” There is no corresponding language in the Court’s QP. Did Justice Sotomayor object to a right that would be limited to citizens? After all, the Second Amendment does not apply to citizens. It refers to the “Right of the people” (Judge Wood adopted that reading of the Second Amendment for the Seventh Circuit). And the Due Process Clause, which the McDonald plurality used for incorporation, refers to persons, not citizens. Yet, Justice Thomas’s controlling McDonald concurrence relied on the Privileges or Immunities Clause, which is limited to citizens.
Fifth, Clement’s QP refers more broadly to “ordinary law-abiding citizens.” Again, there is no similar corresponding language in the Court’s QP. Here, the Court may not have wanted to get involved in the precise basis on the right to carry. What exactly does “ordinary law-abiding” mean? Does that category include non-violent felons? The Court ducked that issue last week.
There is a final, “bonus” concern to be considered, and that is the Court not accepting New York’s phrasing of the QP, which is significantly different:
Whether the Second Amendment prohibits New York from requiring residents who wish to carry a concealed firearm in public to have an actual and articulable need to do so.
This leaves me conflicted about the Court’s petition to grant cert in this case. I understand why the gun rights community is excited at the possibilities. I am too. But this uncharacteristic and seemingly illogical restatement of the QP is the first sign that this grant does not auger well for the future of our right to keep and bear arms. The perfect silence since 2008 has left me jaded. We have been burned before. There is a very good chance this will be the last time a nine-member Court decides a Second Amendment case. The only reason to believe Young v Hawaii was not the death knell of the Second Amendment was the timing of this Court to hear this case. If the Court chooses to punt, there can be no doubt that will be the moment that Justice Scalia warned us about shortly before his death—when Heller is “swept into the dustbin of repudiated constitutional principles.”
It is crucial that we citizens who believe in protecting and preserving our Constitution, the republic it founded, and the limited government set forth in it to protect our rights stay informed and active on these issues. Even for the more Rothbardian libertarians who see the U.S. Constitution, as drafted, as a document of over-reaching control, staying active, engaged, and supporting causes within government that will expand our natural rights in any way is still important. I believe libertarians and constitutional conservatives alike can appreciate the Jeffersonian principle of fighting for liberty as a “game of inches” and taking any win we can get is a strategy worth adopting.
But I can’t help thinking the reason we are even in this mess to begin with is because our national consciousness has become infected with a problem I discussed in a past article called “How Supreme Is The Supreme Court?” These are two related concepts known as “Judicial Supremacy” and “Judicial Universality.” These are twentieth century inventions of the Court, largely taken as gospel truth by most Americans. They essentially assert that “a Supreme Court ruling on the Constitution is the supreme law of the land” and that “any Supreme Court decision on any issue is always and immediately binding on not just the parties to the case, but to everyone everywhere.”
The ugly truth is that we find ourselves in this quagmire precisely because those blasphemous doctrines have been seized upon and added to our nation’s civic liturgy. The reason so many Second Amendment advocates continue to be surprised that the Court is constantly failing to uphold our constitutionally protected natural rights is because they believe it is the Supreme Court who they should be turning to to protect our constitutionally protected natural rights. But not only is that not what the Court does, it is not what it was meant to do. Its job is to be an interpreter (an important distinction from being the interpreter) of the meaning of the Constitution. It is not their duty to be the guardian of our natural rights.
We need to stop looking to the Court to tell us what the Second Amendment means and look for ourselves at the language of the Second Amendment to determine what its text means. It’s our responsibility to give meaning to the text and act according to that meaning.
Furthermore, it’s our responsibility to protect our natural rights. Of course we are in the position we are currently in where it seems like every day we are less free to think what we wish, and to say what we think; and more to the subject, we feel as though our ability to defend our lives, liberty, and property are being stripped away. We have been derelict in our duty to look at the First and Second Amendment for ourselves, decide what they mean and live our lives according to that meaning. We rely on nine Judges to rule from on high about how we are able to use our words and our arms to defend our natural rights at our own peril.
The courts cannot be the guardians of our rights when, as experience has shown and common sense dictates, they are the government from which our rights are under threat.
Bob Fiedler is a constitutinoal law scholar and legal commentator from the Twin Cities and host of the Categorical Imperatives Podcast where he discusses current events in law, politics, and culture from the perspective of a constitutional lawyer and a libertarian moral philosophy.