Declarations from Donald Trump and Mike Pence that gun rights are in danger is no longer hypothetical. It is now certain. If Hillary Clinton wins the presidency, the Second Amendment can be effectively erased from the U.S. Constitution.
For the first time in U.S. history, a federal appeals court on Friday struck down a federal gun-control law for violating the Second Amendment, meaning that next year the Supreme Court will hear a case that includes the opportunity to abolish citizens’ right to bear arms by overruling the Court’s famous Heller precedent.
Clifford Tyler is a law-abiding and peaceful citizen living in Grand Rapids, Michigan. In 1985, his wife of 23 years was having an adulterous affair. She ran off with the other man and took all of Clifford’s money with her. His daughters found him so upset and depressed, banging his head on the floor, that they called the authorities, fearing he might harm himself.
Tyler was taken before a Michigan judge, who ruled there was sufficient reason to be concerned about the distraught man to commit him to a facility for psychiatric evaluation. A couple weeks later the doctors released him with a clean bill of health, saying that he was a perfectly normal person who had a really horrible day. Tyler continued to be a good citizen, a good employee, got remarried, has been a good father, and eventually even repaired his relationship with his unfaithful ex-wife.
He’s now age 74, and wanted to buy a handgun to keep at home for self-defense. But the government told him that federal law bars him from ever owning a gun, so he went to court to assert his Second Amendment rights.
In 2008, the Supreme Court in District of Columbia v. Heller — one of the most famous decisions ever written by Justice Antonin Scalia — held that the Second Amendment is an individual right, and as such does not allow the federal government to bar law-abiding and peaceable American citizens from keeping a handgun in their home. Heller was a 5-4 decision, and left other gun-rights questions for future cases.
Heller specified that it was not weighing in on certain issues, including laws that prohibit certain people from owning guns. Federal law in 18 U.S.C. § 922(g)(4) is one of these gun-control laws, providing that no one “who has been committed to a mental institution” can own firearms.
In 1986 President Ronald Reagan signed an NRA-supported law advancing Second Amendment rights, including 18 U.S.C. § 925(c), which empowers the Justice Department to restore gun rights if the attorney general finds a particular person to be safe and sane. But Congress stopped funding that program in 1992, canceling out that Reagan-era protection for America’s 90 million gun owners.
So in 2007 Congress passed a new law empowering states to set up their own review process to restore gun rights. Most states have established such a program, but some states — including Michigan, where Tyler lives — have not.
The federal district court in Michigan ruled against Tyler, but a panel of the U.S. Court of Appeals for the Sixth Circuit reversed. The Obama administration petitioned the Sixth Circuit to rehear the case en banc, meaning all the judges on the court — in this case, 16 judges — would reconsider the case.
The petition was granted, and on Sept. 15, by a 10-6 vote in Tyler v. Hillsdale County Sheriff’s Department the full Sixth Circuit struck down 18 U.S.C. § 922(g)(4) as a violation of the Second Amendment, and remanded the case back down to the district court for more hearings. The court noted that Heller said laws that kept mentally ill people from getting guns were allowed under the Second Amendment, but held that Section 922(g)(4) went too far by mandating that any person who has ever been involuntarily committed to a mental institution — even for a single day — can never own a gun for the rest of his or her life.
Writing the lead opinion for six judges of the en banc court (which is less than a majority, but still the controlling opinion in this case), Judge Julia Gibbons explained that similar to several other appeals courts, the Sixth Circuit had recently adopted a two-step process for Second Amendment cases. “The first step asks whether the challenged law burdens conduct that falls within the scope of the Second Amendment right, as historically understood,” she wrote. If it does, then “the government bears the burden of justifying the constitutionality of the law under a heightened form of scrutiny.”
Specifically, these judges decided that “intermediate scrutiny” — a term invented decades ago by the Supreme Court — should apply to this type of gun-control law. As Judge Gibbons wrote, intermediate scrutiny requires “(1) the government’s stated objective to be … important and (2) a reasonable fit between the challenged regulation and the asserted objective.” This standard is less stringent than “strict scrutiny,” which is another judge-made test.
The lead opinion noted that the Justice Department in this case failed to cite historical material or other evidence supporting Section 922(g)(4). “In the absence of such evidence, it would be odd to rely solely on Heller to rubber stamp the legislature’s power to permanently exclude individuals from a fundamental right based solely on a past involuntary commitment.”
Judge Gibbons continued, “Some sort of showing must be made to support Congress’s adoption of prior involuntary commitments as a basis for a categorical, permanent limitation on the Second Amendment right to bear arms.”
The judges thought this principle applied with special force in this case. “Tyler’s [lawsuit and evidence] suggest that Tyler is thirty years removed from a brief depressive episode and that he has no intervening mental health or substance abuse problems since that time.”
“None of the government’s evidence squarely answers the key question at the heart of this case: Is it necessary to forever bar all previously institutionalized persons from owning a firearm?,” the court reasoned. Then noting Congress’s own restoration program in Section 925(c) and the 2007 law allowing for state restoration programs, added, “But the biggest problem for the government is Congress’s most recent answer to this very question: No, it is not.”
Thus, the court concluded that since the Obama administration presented no evidence supporting this statute, “There is no indication of the continued risk presented by people who were involuntarily committed many years ago and who have no history of intervening mental illness, criminal activity, or substance abuse.”
The Sixth Circuit thereby invalidated this federal law, holding, “As we see it, the government may justify § 922(g)(4) in one of two ways: (1) with additional evidence explaining the necessity of § 922(g)(4)’s lifetime ban or (2) with evidence showing that § 922(g)(4) is constitutional as applied to Tyler because he would be a risk to himself or others were he allowed to possess a firearm.”
Judge Jeffrey Sutton wrote a separate opinion, joined by several judges, as to why this federal law must be struck down.
“Keep in mind that Tyler is not demanding a gun today,” he wrote. “He is demanding only what Congress used to permit and what most States still permit: an opportunity to show that he is not a risk to himself or others.”
After a lengthy discussion, Judge Sutton continued, “If there is one thing clear in American law today, it is that the government may not deny an individual a benefit, least of all a constitutional right, based on a sky-high generalization and a skin-deep assumption stemming from a long-ago diagnosis or a long-ago institutionalization.”
“Tyler has presented plenty of evidence that he is just fine,” Judge Sutton concluded.
Judge Karen Moore — a Clinton-appointed liberal who is a perfect example of the sort of judge Hillary Clinton would be expected to nominate to the Supreme Court — wrote an energetic dissent, joined by several other liberal judges. In it, she argued that Tyler should never be allowed to own a gun, and that Congress has all the power it needs to ban gun ownership by many other types of Americans as well.
Judge Moore also argued for the dissenting judges that Heller should be interpreted as saying that the Second Amendment does nothing to block federal gun-control power here, a reading that is utterly incompatible with what Justice Scalia actually wrote.
Although the Cincinnati-based appeals court reached the right result, it did not do so for the right reasons.
In fact, the only judge who followed Justice Scalia’s famous originalist approach in Heller — the method of interpreting the Constitution and all laws according to the original meaning of their words, a method always followed by Justice Clarence Thomas, and often followed by Justice Samuel Alito as well — was Judge Alice Batchelder.
Judge Batchelder faulted both the lead opinion and the dissenting opinion for failing “to give adequate attention to the Second Amendment’s original public meaning in defining the contours of the mental health exception. And it is that meaning, informed as it is by the history and tradition surrounding the right, that counts.”
She continued that the other opinions’ debate over strict and intermediate scrutiny gives “little more than a nod to the originalist inquiry.” This shortchanging of the Supreme Court’s approach in Heller (and many other cases) thereby “radically marginalizes the role played by the text, history, and tradition of the Second Amendment, and it replaces them with a thoroughly modern (and judge empowering) regime of heightened-scrutiny review.”
The appeals court’s taking such a course here “is a forbidden peregrination from the actual meaning of the Constitution into the realm of judicial policymaking.” Instead of fixating on strict or intermediate scrutiny with only a glance at history, the Supreme Court in Heller and McDonald “put the historical inquiry at the center of the analysis, not at the margin.”
Judge Batchelder then explored sources from the time of the Constitution’s writing, examining what they said about mental illness, including the relevant factor here of when a person is unable to distinguish good from evil, and could be deprived by the law of certain rights.
She then noted that “such deprivations were not once-for-all,” and cited numerous sources from the time the Second Amendment was adopted to show that if a person regained their reason and sense of morality, they were no longer regarded as mentally ill.
Judge Batchelder then concluded:
As has been mentioned many times today, the dangers presented by guns are real, frightening, and obvious. Those realities will continue to factor heavily in the scrutiny analysis. Less obvious to the contemporary judicial mind are the Founding-era fears of tyranny and defenselessness that provided the impetus behind the Second Amendment. Whether the Founding generation struck a wise balance in ratifying that amendment is perhaps debatable. What is not debatable is that we— federal judges—are neither philosopher kings empowered to “fix” things according to the dictates of what we fancy is our superior insight, nor rubber stamps, approving whatever laws the legislatures of this country happen to pass. We are bound, rather, by our oath to uphold and defend the Constitution, and we must therefore show restraint when that document restrains us and be active when it commands action.
As important as the Sixth Circuit’s Tyler decision is, that is not the most newsworthy aspect of this case. Because now a federal appeals court has struck down an Act of Congress on constitutional grounds.
That means the Obama administration’s solicitor general will now petition the U.S. Supreme Court to grant certiorari to review this case. Under these rare circumstances, it is virtually 100 percent certain that the justices will grant review and hear the case.
That means that the Second Amendment will be back before the Supreme Court in 2017, after a ninth justice has been confirmed to replace Scalia. The Second Amendment has survived twice at the Supreme Court over the past decade, both by only 5-4 votes.
One of the ways that the justices could rule in favor of the federal government would be to overrule Heller, and hold that the Second Amendment does not apply at all to private citizens. [The leftist view of the Second Amendment is that its only meaning is that the federal government cannot stop state governments from arming their National Guard (i.e., “militia”) units with guns.]
So declarations from Donald Trump and Mike Pence that gun rights are in danger is no longer hypothetical. It is now certain. If Hillary Clinton wins the presidency, the Second Amendment can be effectively erased from the U.S. Constitution.
Written by Ken Klukowski and published by Breitbart ~ September 20, 2016.
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