{"id":103400,"date":"2024-08-03T11:51:02","date_gmt":"2024-08-03T16:51:02","guid":{"rendered":"https:\/\/milesfortis.com\/?p=103400"},"modified":"2024-08-03T11:51:02","modified_gmt":"2024-08-03T16:51:02","slug":"103400","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=103400","title":{"rendered":""},"content":{"rendered":"

Courts Attacking Second Amendment Right to Legally Acquire Firearms<\/a><\/p>\n

There\u2019s an interesting \u2013 if not devious \u2013 trend emerging in some Second Amendment cases. The first step of the U.S. Supreme Court\u2019s\u00a0Bruen<\/em>\u00a0test is to ask whether the conduct at issue is covered by the text of the Second Amendment which protects a pre-existing \u201cright to keep and bear arms.\u201d\u00a0 Some lower courts in purporting to apply the\u00a0Bruen<\/em>\u00a0test are upholding gun control laws by holding that you do not have a Second Amendment right to buy a firearm.<\/p>\n

That\u2019s intellectually dishonest, to say the least. The ability to freely approach the gun counter to legally purchase a firearm is paramount to exercising the Second Amendment rights to keep and bear arms. There is no \u201ckeeping\u201d of firearms if there is no legal right to lawfully acquire those same firearms. The ramifications of this flawed legal reasoning are self-evident. The government could simply ban the buying (and selling) of firearms and therefore eviscerate the Second Amendment all without infringing upon the right.<\/p>\n

<\/p>\n

Right to Buy<\/h4>\n

The most recent example comes from New Mexico, where a federal district court judge\u00a0refused to preliminarily enjoin<\/strong><\/a>\u00a0the state\u2019s seven-day waiting period for purchasing a firearm. There were several serious concerns with this decision, including the judge\u2019s determination that the lengthy waiting period doesn\u2019t constrain the rights to keep and bear arms. The judge contended that the waiting period only minimally burdens the \u201cancillary right to acquire firearms.\u201d<\/p>\n

That might come as news to an individual facing imminent threat to their safety or even their life. A woman who is the victim of domestic violence who considers purchasing a firearm to protect herself and her family could argue that the state\u2019s seven-day waiting period is a seven-day ban on her ability to lawfully keep and bear arms when she knows there\u2019s a threat to her life.<\/p>\n

That wasn\u2019t the worst of it. The same judge concluded that the waiting-period law is presumptively constitutional\u201d given that the first waiting period laws were enacted in the 1920s \u2013 long after U.S. Constitution was ratified, and the 14th<\/sup>\u00a0Amendment adopted. The judge even pointed to past, discriminatory laws that restricted the sale of firearms to slaves, freedmen and Native Americans. It is astonishing that a federal judge relied on racist laws that have been repudiated by the courts and American society to justify a gun control law.<\/p>\n

However, that\u2019s not what the Supreme Court held in the\u00a0Bruen<\/em>\u00a0decision. That test, the Court said, is that gun control laws must have a \u201chistory and tradition\u201d consistent with when the Second Amendment was signed into law in 1791 at the nation\u2019s founding.<\/p>\n

Court Concerns<\/h4>\n

It would be tempting to dismiss this judge\u2019s decision as a \u201cone-off\u201d aberration. Unfortunately, that\u2019s not the case. A 2024 decision by the U.S. District Court for the Southern District of New York explicitly said that there is no Second Amendment right to purchase a second handgun within a 90-day window of purchasing a previous handgun.<\/p>\n

\u201cThe question thus becomes whether a waiting period before the purchase of a second handgun is conduct covered by the text of the Second Amendment. It is not,\u201d the court ruled in its opinion of\u00a0Knight v. City of New York<\/strong><\/em><\/a>.<\/p>\n

What the court is saying is that the government can ration the exercise of a Constitutionally-protected right, in this case, to just once every 90 days. This would be unthinkable if a court ruled that a law-abiding American could only exercise their rights to free speech or attend a church, mosque of synagogue of their choosing every three months. The federal court here is relegating the Second Amendment to a second-class right, that\u00a0Justice Clarence Thomas has warned about<\/a><\/strong>.<\/p>\n

That line of thinking wasn\u2019t limited to New York. The U.S. District Court for the District of Vermont upheld the state\u2019s waiting-period law, in\u00a0Vermont Federation of Sportsmen\u2019s Clubs v. Birmingham<\/strong><\/em><\/a>\u00a0this year, by claiming there\u2019s no Second Amendment right to legally purchasing a firearm.<\/p>\n

\u201cThe Court finds that the relevant conduct \u2013 acquiring a firearm through a commercial transaction on-demand \u2013 is not covered by the plain text of the Second Amendment,\u201d\u00a0wrote<\/a><\/strong>\u00a0Judge William Sessions III. He quizzically added, \u201cPlaintiffs may keep and bear arms without immediately acquiring them.\u201d<\/p>\n

That defies logic. It is impossible to legally keep and bear anything without the ability to lawfully purchase it first.<\/p>\n

In 2023, the U.S. District Court for the District of Colorado ruled against Rocky Mountain Gun Owners seeking to enjoin a three-day-waiting period law signed by Gov. Jared Polis. In this decision, the federal court ruled that the Second Amendment doesn\u2019t explicitly say anything about legally acquiring a firearm.<\/p>\n

\u201cFrom this reading of the plain text, it is clear the relevant conduct impacted by the waiting period \u2013 the receipt of a paid-for firearm without delay \u2013 is not covered,\u201d\u00a0the decision reads<\/strong><\/a>, adding, \u201cTo \u2018keep,\u2019 under the definitions provided in\u00a0Heller<\/em>, meant to retain an object one already possessed. It did not mean to receive a newly paid-for item, and it certainly did not mean to receive that item without delay. Likewise, \u2018hav[ing] weapons\u2019 indicates the weapons are already in one\u2019s possession, not that one is receiving them.\u201d<\/p>\n

The U.S. District Court for the Eastern District of Pennsylvania ruled in 2023 in\u00a0U.S. v. King<\/strong><\/em><\/a>\u00a0that there is no right to buy and sell firearms. In fact, Judge Joseph Leeson Jr. clearly states that it is a factor he didn\u2019t \u2013 and wouldn\u2019t \u2013 consider, writing, \u201c\u2026the Court looks at the Second Amendment\u2019s plain text; it does not consider \u2018implicit\u2019 rights that may be lurking beneath the surface of the plain text.\u201d<\/p>\n

\u201cEven if the Court assumed that there is an implicit right in the Second Amendment to buy and sell firearms in order to keep and bear arms, that is not the same thing as a right to buy and sell firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms,\u201d Judge Leeson\u00a0wrote<\/a>.<\/strong>\u00a0\u201cIn other words, the Second Amendment does not protect the commercial dealing of firearms.\u201d Of course, while\u00a0Heller<\/em>\u00a0said commercial regulations could be presumptively valid, it never suggested that the buying and selling of commonly used \u201carms\u201d could be banned.<\/p>\n

Governors Knew in 2020<\/h4>\n

Juxtapose that with governors who, just four years ago, quickly reversed their policies to order firearm retailers to close their doors during the 2020 COVID-19 pandemic. New Jersey\u2019s Gov. Phil Murphy\u00a0reversed course<\/strong><\/a>\u00a0from his initial ordering of gun stores to be closed. He recognized that denying the ability of law-abiding citizens to legally obtain a firearm is denying them the ability to exercise their Second Amendment rights. Pennsylvania\u2019s former Gov. Tom Wolf\u00a0did the same<\/strong><\/a>,<\/strong>\u00a0even after Pennsylvania\u2019s Supreme Court\u00a0denied a<\/strong>\u00a0challenge<\/strong><\/a>\u00a0to the order. The quiet about-face was in light of what could have become a U.S. Supreme Court challenge.<\/p>\n

A federal judge ordered former Massachusetts Gov. Charlie Baker to allow firearm retailers there to reopen. The judge\u00a0ordering the injunction wrote<\/strong><\/a>,<\/strong>\u00a0\u201cThe exigencies surrounding this viral pandemic both justify and necessitate changes in the manner in which people live their lives and conduct their daily business. However, this emergency \u2013 like any other emergency \u2013 has its constitutional limits. It would not justify a prior restraint on speech, nor a suspension of the right to vote. Just the same, it does not justify a ban on obtaining guns and ammunition.\u201d<\/p>\n

Divorcing the right to freely approach the gun counter at a firearm retailer and the rights to keep and bear arms is a dangerous slope. Firearms are legal products, available for anyone to freely purchase who is over the age of 18 for long guns or 21 for handguns, provided that individual is purchasing the firearm for him or herself and can pass the FBI\u2019s National Instant Criminal Background Check System (NICS). Conditioning that right \u2013 whether through waiting periods which are an attempt to delay the exercise of that right \u2013 or by unmooring the right to legally purchase a firearm is a violation of the rights that belong to the people.<\/p>\n

Imagine a court ruling that the First Amendment doesn\u2019t include the right to buy a book. Or a law that said you can only buy a newspaper after waiting seven days. Or a law that limits how many books you can buy in a month. Or a law in which the government decides which books you are allowed to buy and read? Obviously, no one would tolerate such laws. So why is it acceptable for Second Amendment rights? The answer, sadly, is that despite the\u00a0Heller, McDonald<\/em>\u00a0and\u00a0Bruen<\/em>\u00a0decisions, because some legislative bodies and judges treat the Second Amendment as a \u201csecond class right.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

Courts Attacking Second Amendment Right to Legally Acquire Firearms There\u2019s an interesting \u2013 if not devious \u2013 trend emerging in some Second Amendment cases. The first step of the U.S. Supreme Court\u2019s\u00a0Bruen\u00a0test is to ask whether the conduct at issue is covered by the text of the Second Amendment which protects a pre-existing \u201cright to … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[10,23,8],"tags":[],"class_list":["post-103400","post","type-post","status-publish","format-standard","hentry","category-corruption","category-courts","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/103400","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=103400"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/103400\/revisions"}],"predecessor-version":[{"id":103401,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/103400\/revisions\/103401"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=103400"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=103400"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=103400"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}