By Dave Workman | Senior Editor
Nearly half of the nation’s state attorneys general have signed an amicus brief supporting a National Rifle Association challenge to a federal gun law restricting handgun sales to people over age 21, and both the NRA and the Second Amendment Foundation assert that the lower federal courts are stubbornly resistant to the Supreme Court’s rulings in the Heller and McDonald cases.
The NRA has petitioned the U.S. Supreme Court for review of its case, and a decision to hear the case could come in November, according to sources close to the issue. SAF has filed an amicus brief supporting the NRA action.
According to Newsmax, attorneys general representing the following states have signed onto the brief. They are Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Michigan, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wisconsin.
Perhaps not surprisingly to gun owners on the West Coast, the attorneys general in California, Oregon and Washington are noticeably absent, while the AGs in Alaska, Idaho, Utah, Arizona and Montana all signed on.
But key to the argument offered by the NRA in its petition, and SAF in its amicus brief are assertions that judges in lower federal courts continue to exhibit disdain for the Second Amendment and the high court’s rulings in the 2008 Heller and 2010 McDonald cases. Both of those rulings affirmed that the Second Amendment is protective of an individual right to keep and bear arms that goes beyond service in a militia.
The NRA, in its petition, notes, “This case is part of a pervasive pattern of stubborn resistance to this Court’s holding that the Second Amendment secures a right that is not just individual, but fundamental. As six judges who dissented from the denial of rehearing en banc recognized, it cannot seriously be contended that the panel’s decision is reconcilable with that holding. There is no other fundamental right that could be effectively denied to an entire class of law-abiding citizens on the theory that they are too near the age of legal majority or too ‘irresponsible’ to exercise it. Indeed, there is no other fundamental right that an entire class of law-abiding adult citizens has been denied for any reason at all.”
The NRA contends that there is a “recurring trend of obstinate resistance” to the high court’s ruling that the Second Amendment protects a fundamental civil right.
SAF attorney Alan Gura’s brief also alerts the high court to an alarming pattern in the lower courts to essentially ignore Supreme Court rulings in the Heller and McDonald cases – which Gura successfully argued – that the Second Amendment affirms and protects a fundamental individual civil right.
“Courts remain largely steadfast in their belief,” Gura writes in his brief, “that the keeping and bearing of arms is less a fundamental right than a social evil. The near-uniform syllogism, played out in countless cases, holds: (1) any firearm, under any circumstances, might be misused; (2) the government has a powerful interest in preventing the misuse of firearms; (3) courts cannot question the government’s assertion that any given law is necessary as a matter of public safety, therefore;
(4) any firearm law is constitutional…
“Indifference or hostility to Second Amendment rights pervades the lower courts,” he later adds.
Gun rights advocates have long contended that gun prohibitionists have labored for decades, perhaps even before the 1939 Miller case, which many assert has been grossly misinterpreted or downright misrepresented. That misrepresentation holds that the Second Amendment merely protects a state’s right to organize a militia, and that gun ownership by individual citizens should be treated as a heavily-regulated privilege rather than a constitutionally-protected civil right.
Even in the wake of both recent Supreme Court rulings, anti-gunners stubbornly cling to the belief that the court erred twice, thanks to what they call “activist conservative justices.” In several lower court rulings, federal judges have continued to rule as narrowly as possible on gun rights-related cases, the briefs suggest.
But this case could carve new legal ground while pitting certain liberal principles against one another. The NRA case essentially challenges the government to explain why a citizen who is old enough to vote, to die in uniform and to purchase shotguns or rifles – including semiautomatic modern sport-utility rifles – is somehow not old enough to legally purchase a handgun.
