In Part I, I set the groundwork for this discussion by providing the details that the so-called mainstream media won’t. I finished by asking some basic questions:
- Why would the SJC take up this case on appeal?
- How would the SJC be viewed by the citizens of the Commonwealth of Massachusetts if they indeed were to rule against Runyan?
- What if they rule in favor of Runyan? What, if any would be the short or long term ramifications?
Before I answer those hypothetical questions let’s review some more historical context to help you understand where we are today.
The Second Amendment in Massachusetts
Article XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it. – Massachusetts State Constitution
In Commonwealth v. Davis 1976 the SJC ruled there was no individual right to keep and bear arms. Yet the United States Supreme Court in the D.C. v. Heller case called Massachusetts on the carpet when it used the Commonwealth v. Blanding case of 1825 to clearly cite otherwise.
Second Amendment 14th Amendment Incorporation
Since the June 26th Supreme Court decision several other cases have been decided that could influence this case and whether or not the Second Amendment is incorporated to the States via the 14th Amendment.
The Nordyke case recently decided by the 9th Circuit clearly incorporates the Second Amendment to the States.
The 7th U.S. Circuit Court of Appeals in Chicago in a 3-0 ruling that upheld weapons ordinances in Chicago and suburban Oak Park, Illinois, and rejected challenges by gun rights advocates effectively disagreeing with the 9th Circuit.
This has provided the NRA with the ability to file a petition for certiorari to appeal the 7th Circuit ruling, asking for a reversal of that court’s decision and one in favor of incorporation.
Now that you understand all of this, let’s get back to our questions.
Why would the SJC take up this case on appeal?
It is my speculation that SJC may have taken up this case for one primary reason. They are very worried about the 14th Amendment incorporation being used without precedent or a ruling from the Supreme Court. The very fact that in Commonwealth v. Bolduc the court held the statute (G.L.c. 140, sec. 131L) was unconstitutional, and dismissed the prosecution implies incorporation. A copy of the opinion states:
The locking mechanisms [required by the statute] are the functional equivalent of those enumerated in the D.C. statute struck down in Heller.
In Heller, the Court held that the Second Amendment not only protects an individual's right to possess firearms but that the right requires that the firearms be available for "the purpose of immediate self-defense." The Massachusetts statute mandating lock boxes or similar devices would frustrate an owner's ability to immediately access an operable weapon.
Although the statute exempts firearms that are "carried" or "under the control of the owner" from the requirement that they be locked, the statute applies to the lawful owner of a firearm even when he is at home. People can be subject to prosecution whether they are home or not. The term "under the control of the owner" is a question of fact and subject to interpretation. Any ambiguity in the statute as applied to a person lawfully keeping a firearm in the home must be resolved in favor of the holder of the right. Legislation requiring an owner to store firearms in a place inaccessible to children or unauthorized persons would satisfy the Supreme Court's holding in Heller and protect the safety of others.
In light of the foregoing, the Court finds that, based on the Supreme Court's decision in District of Columbia v. Heller, G.L.c. 140, sec. 131L is unconstitutional.
They see the very real danger in this and are jumping at a chance to rule on this especially given that the United States Supreme Court ruling in D.C. v. Heller concerning an “individual right” is now in direct opposition to the SJC ruling in Commonwealth v. Davis in 1976 should incorporation be successful.
How would the SJC be viewed by the citizens of the Commonwealth of Massachusetts if they indeed were to rule against Runyan?
Not favorably, by some, I assure you. While technically the SJC would be correct given current state law and the lack of incorporation there is nothing to force any other decision. (I’m predicting this as the final outcome.) However, just like their ruling in Commonwealth v. Davis in 1976 they’d be wrong – again – from a fundamental rights perspective. Worse a great injustice will have occurred allowing the law to be applied differently to State Police Officers than to the citizens they are employed by.
What if they rule in favor of Runyan?
Unlikely, but they’d be viewed favorably by some. They’d be viewed as recognizing D.C. v. Heller as precedent and upholding the law, quasi legal precedent already set in the Bolduc case demonstrating that the law then being properly applied to all citizens regardless of title or occupation. Again, unlikely because they would then open a can of worms with respect to many other state firearms statutes.
What, if any, would be the short or long term damage?
First for the record, I’m a strong States Rights supporter. However, when we are talking about a fundamental, God given right, not unlike the 1st I can see how this becomes challenging issue.
Secondly, you should know that old phrase - “the road to hell is paved with good intentions”. Those that want to pass these kinds of laws to protect children are very well intentioned, but what they don’t realize is they make it more likely in the long run that children will fall victim of firearm incident because they never learned (had the opportunity removed by statute) proper firearm safety. It’s my view, that we do our children a greater disservice by attempting to shield them from harm to the point that they cannot function in society when confronted with the inevitable challenges of life. Instead, I believe we best protect our children through education and training. By teaching them respect for life and the lives of others like the very successful NRA Eddy Eagle program.
So, if in the short term, the SJC rules against Runyan, in I believe the damage will be short lived. In the long term, no matter how the SJC rules, when (not if) the NRA has been granted certiorari, argued their case, and win the day again; the SJC of Massachusetts (along with the 7th Circuit) and all 50 States will most likely be forced to abide by the D.C. v. Heller decision through the 14th Amendment.
This time, for good; ensuring justice for all.
Visit www.NRANews.com to listen live to the broadcast! NRA News is a daily internet and satellite radio (Sirius Patriot 144) news program sponsored by the NRA. Listen weekdays from 9:00 PM to 12:00 AM EDT for the latest in Second Amendment related news and politics. If you miss the show, you can listen to an archived edition until the the next live edition of "Cam & Company" airs.
The time has come...
Comments
As stated in the comments to your immediately previous article I would point out that the lack of incorporation by any state of any of the Bill of Rights, which are plainly enumerated is simply illegal and morally reprehensible as an exercise in dictatorial tyranny.
There is something fundamentally perverted in any body of individuals who claim to understand "emanations of a penumbra" (Roe v.Wade), but claim not to understand "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" in the fourteenth amendment.
There may be some room for discussion of which unenumerated rights are legitmate, which is the only test of whether or not they are subject to incorporations. But there can be no honest disagreement about any of the enumerated rights being incorporated, they are period. Despite the gutless machinations of those who use any feeble excuse to deny citizenship to citizens.
"States rights" vs. Federal power is a false issue when an INDIVIDUAL right is in question.
States should -- and do constitutionally -- prevail over the Federal authority whenever Federal power is not explicitly authorized by the Constitution. This is true "states rights".
However, both by Article 4, Section 2, Paragraph 1, and the 14th Amendment the Federal government is empowered and required to protect the fundamental rights -- especially those enumerated by the Constitution -- guaranteed to all US citizens.
THIS is NOT a "states rights" issue, but rather an enforcement of INDIVIDUAL rights.
There is no (true) conflict since the proper hierarchy is:
Individuals, States, the United States
Anyone else see the least bit of hippocrasy by those than demand universal sex education in grade school for the "protection of the children", yet recoil in horror when you suggest a good basic gun safety course?
There are an estimated 250 million firearms in the US. A parent could spend every waking minute in an attempt to shield their child from exposure to all these weapons, or conversely with just a few hours in a good basic gun safety course repeated at age appropriate levels ensure their safety from ever having an unfortunate accident with any firearm.
The 14th Amendment was ratified after the Civil War. The purpose was clear at the time, to force the States to recognize the rights afforded the newly freed slaves by the Bill of Rights. No more complicated than that. It's only when we try and make it complicated, does it get complicated.
Did it do the job?
You have hinted at the resolution of States Rights vs. Federal power that most people miss in such cases
To make the point more explicit:
There are three types of entities involved: the people, the states, and the federal government.
When only (or primarily) the states are in conflict with the federal power, then the states MUST win the point unless the Constitution explicitly grants that specific federal power.
However, when any state is abusing the rights of the people guaranteed by the Constitution, then the federal responsibility is to protect those rights, even if this means over-riding what would otherwise be a state perogative.
Notice that in such cases the federal government is not 'winning' for itself, but rather acting as the protector of the rights of the PEOPLE of the United States.
There is absolutely no conflict between ideologies if we merely start with the premise required by the Constitution: The power to govern originates in the people.
@Bill: "The purpose was clear at the time, to force the States to recognize the rights afforded the newly freed slaves by the Bill of Rights. No more complicated than that. It's only when we try and make it complicated, does it get complicated. Did it do the job?"
It is, perhaps, a fact provocative of sour mirth that the Bill of Rights was designed trustfully to prohibit forever two of the favorite crimes of all known governments: the seizure of private property without adequate compensation and the invasion of the citizen's liberty without justifiable cause.... It is a fact provocative of mirth yet more sour that the execution of these prohibitions was put into the hands of courts, which is to say, into the hands of lawyers, which is to say, into the hands of men specifically educated to discover legal excuses for dishonest, dishonorable and anti-social acts.
--H.L. MENCKEN
Changing white into black is the job of painters and lawyers.
--DANISH PROVERB
Whn my Irish grandmother learned that my cousin was graduating from law school, she asked in a heavy brogue, "So you are going to be a liar, now?", where with the Gaelic accent the words "lawyer" and "liar" are indistingishable as they are pronounced the same. Her use of the pun was intentional. She had lived too many years in her adopted city of Boston.
I am a Jewish woman I am all too aware of the ramifications of selective incorporation of the bill of rights. I have just one question for the SJC, what part of "shall not be infringed" don't you understand?
Not surprised that the SJC took the easy way out approach. I am not even surprised that they did it so soon after getting the nod from the SCOTUS. Thank God the SCOTUS will soon force Massachusetts to abide by the supreme law of the land!! So much for states being trusted to not violate your God given rights!! This is why the 14th amendment is so important. If you are traveling through Mass from out of state and stopped without your guns unloaded and locked in your trunk you can go to jail! Welcome to the peoples Republic of Massachusetts your room on the big house is waiting!! This state is now the worst in the entire Union......how fing ironic is that?
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