Jim Hartman: The Second Amendment: constitutional 'orphan'

Firearm sales have surged during the coronavirus pandemic. Fears over the pandemic and urban unrest are driving millions of Americans to buy guns at a record pace, with nearly half appearing to be first time gun owners.

An estimated 3 million more guns have been sold since the pandemic began, with 40% being first-time buyers. 2020 is on track to be the biggest year ever for gun sales in America.

While the federal government doesn’t track firearm sales, they do track gun background check data through the FBI/NICS system. Through June, background checks in 2020 increased by 69% over those conducted in 2019.

The Las Vegas Sun reports the FBI processed more than 22,200 firearm background checks from Nevadans in March through the NICS system, more than double the average number of background checks conducted on Nevadans last year.

Currently, nearly 40% of Nevada residents own guns, ranking Nevada 16th out of 50 states in per capita gun ownership.

The first full Supreme Court term is now in the books with both Neil Gorsuch and Brett Kavanaugh on the bench. Conservatives were disappointed the court punted — again — on gun rights. The Supreme Court declined to decide any Second Amendment case this term.

It was Justice Antonin Scalia’s landmark opinion, D.C. v. Heller (2008), where the Supreme Court held individuals have the right to bear arms — but politicians often ignore it. Too often courts have acquiesced in upholding or refusing to review unconstitutional restrictions.

The Supreme Court has refused to review any Second Amendment case since 2010. Justice Clarence Thomas observes: “The right to keep and bear arms is apparently this court’s constitutional orphan.”

Last December, the court finally heard arguments (New York State Rifle & Pistol Association case) concerning a New York City rule that severely restricted transporting legally owned guns outside of the owner’s home. The rule prevented residents from taking their guns from their city homes to shooting ranges and homes outside the city.

After the high court accepted the case, the city revised its ban in an effort to avoid an adverse court decision. Case moot, the New York politicians declared.

Five Senate Democrats also weighed in with an amicus brief threatening the Justices if they didn’t follow their orders to drop the case. “The Supreme Court is not well,” they wrote. “Perhaps the court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”

In May, the majority buckled with Chief Justice John Roberts wanting to avoid becoming a target of vengeful Senate Democrats. Roberts joined the four liberal Justices in declaring moot the challenge to New York City’s onerous gun regulation.

The Supreme Court in June ducked another Second Amendment case. They declined to review Rogers v. Grewal, a lawsuit dealing with a restrictive New Jersey law that prohibits carrying a firearm unless a “justifiable need” to do so can be demonstrated.

The New Jersey case involved a man who applied for a permit to carry a handgun. Because he serviced ATM’s in high-crime areas, he felt he needed a gun for self-defense.

His application was denied. While Nevada is a “must issue” state, New Jersey applicants have to establish they have an “urgent necessity for self-protection, as evidenced by specific threats or previous attacks.”

In other words, to prove you need a gun for self-defense in New Jersey, you virtually have to be attacked first.

By passing up Rogers, the Supreme Court has declined an opportunity to instruct lower courts and state legislatures on the extent to which the Second Amendment protects the right to self-defense.

Is the Second Amendment limited to a handgun in the home? If the Supreme Court is too gun-shy to answer, the landmark Heller case will continue to be hollowed out by politicians and liberal judges.

Jim Hartman is an attorney residing in Genoa. Email lawdocman1@aol.com