In 2008 gun rights supporters cheered when the United States Supreme Court in District of Columbia v. Heller issued a clear ruling holding that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.”
Based upon this holding, the Court struck down the federal District of Columbia statute which generally barred the possession of firearms in the District unless a person held a firearms license, a document not issued by the District for many years. The Heller Court also struck down the District’s “prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”
And in 2010 gun rights supporters were buoyed again when the Supreme Court declared in McDonald v. City of Chicago that the Second Amendment was a “fundamental right.” Writing for the majority, Justice Samuel Alito invoked the magic words from a case known as Palko v. Connecticut to “incorporate” the Second Amendment through the “due process” clause of the Fourteenth Amendment to limit the powers of the sovereign 50 states in the same way that the Second Amendment limits federal power:
“In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty," wrote Justice Alito.
The Chicago gun ban was struck down, and precedent was presumably set to take down other state and local restrictions on the right to keep and carry weapons in case of confrontation. And moreover, as a “fundamental” right, courts are supposed to tip the scales in favor of the right – to give “strict scrutiny” to governmental regulations limiting the right to keep and carry weapons in case of confrontation.
In other words, going forward after McDonald, the government was supposed to usually lose, and the people were supposed to usually win, Second Amendment cases.
But then things got weird.
For several years after Heller and McDonald the Second Amendment entered a sort of "doldrums" phase, as if the Supreme Court had issued its opinions in a sort of “nebula” cloaking their meaning. Cases were filed to strike down gun possession and carry bans, and while some plaintiffs prevailed on some of their claims, courts generally refused to apply “strict scrutiny” to restrictions on the right to keep and carry weapons in case of confrontation.
In 2011 often-called “conservative” Fourth Circuit Court of Appeals Judge J.Harvey Wilkinson III, writing for the majority, borrowed a page from Second Amendment activists who say “molon labe!” or “come and get them,” a phrase borrowed from the Spartan King Leonidas at the battle of Thermopylae in response to Persian demands to law down their weapons. Indignantly calling the Supreme Court his “supervisors,” Wilkinson essentially told the Supreme Court to – in regard to applying strict scrutiny to Second Amendment cases – “come and make us!”
“There simply is no need in this litigation to break ground that our superiors have not tread. To the degree that we push the right beyond what the Supreme Court in Heller declared to be its origin, we circumscribe the scope of popular governance, move the action into court, and encourage litigation in contexts we cannot foresee. This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights. It is not far-fetched to think the Heller Court wished to leave open the possibility that such a danger would rise exponentially as one moved the right from the home to the public square.” – Judge Harvey Wilkinson.
The case was United States v. Masciandaro and pertained to the National Park Service’s gun ban in National Parks. At the time of the writing of Masciandaro almost every state already allowed gun carry in “the public square,” usually without need of any license, and Congress and President Obama had long ago repealed the National Park regulation that Mr. Masciandaro had violated.
Stymied in a lot of courts, gun rights supporters shouted "foul play." Even mainstream elements of the legal community grew concerned, labeling the Wilkinsonian “come make us” Second Amendment doctrine as “the massive resistance” – the name for the political movement in Virginia and other states to refuse to comply with the letter and spirit of court orders to desegregate state run public education
But then in December of 2012, Judge Richard A. Posner, as famous in legal circles as Judge Wilkinson, wrote an opinion for a majority of a Seventh Circuit Court of Appeals panel in Moore v. Madigan. At issue in Moore was whether the Second Amendment permits a state – in this case Illinois - to completely ban the carriage of operable firearms outside the home.
In an exceedingly persuasive opinion citing to Heller and McDonald, Posner said - no – a state cannot completely ban the carriage of operable firearms outside the home.
“[A] Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in
his apartment . . . [the] right to bear arms for self-defense . . . is as important outside the home as inside,” noted Judge Posner wryly.
The Illinois legislature responded by enacting a “shall issue” concealed carry licensing scheme which gun rights watchers agree is fairly reasonable. For example, the new Illinois allows loaded gun carry in bars and excuses brief or accidental exposure of firearms (open carry) in public.
Following Posner’s 2012 opinion in Moore, other courts, citing to Moore, began applying stricter scrutiny to governmental restrictions on the right to keep and carry weapons in case of confrontation. In July of 2013 the Federal District Court in Colorado struck down the US Post Office’s regulation banning gun carry on Post Office Parking lots.
And more gun rights court wins followed, gradually eclipsing gun rights cases losses – here are some of the growing number of state and federal Second Amendment cases - issued at about the rate of two per month - striking down gun bans around the United States:
December 2013 – Florida Appeals Court says state colleges cannot ban guns on campus.
December 2103 – Even in the Second-Amendment-hostile Second Circuit, Federal Judge strikes down New York’s 7-round ammunition as essentially not passing the “giggle test,” and other parts of the so-called SAFE Act as void for vagueness.
John Pierce, co-founder of OpenCarry.org, thinks this gun rights’ winning streak trend will continue.
“Judge Posner’s opinion in Moore has finally led us out of the ‘nebula,’” says Pierce. “I also expect the Supreme Court to eventually grant certiorari in a case to break the current ‘circuit split’ on the breadth of Second Amendment protections,” added Pierce.
Whether or not the Supreme Court takes an appeal from one of the shrinking number of “come make us” jurisdictions cannot be predicted. But what seems clear is that the judicial tide has finally turned in favor of gun rights.
UPDATE, March 31, 2014 - Federal judge strikes down New Mexico's US citizenship requirement for concealed carry licenses.