By Theresa Inacker and Peter B. Elias
The reaction to the leaked Supreme Court draft opinion in Dobbs v. Jackson Womens Health Organization has been one of violence and threats of violence by its supporters. Ironically, Chicago Mayor Lori Lightfoot tweeted a “call to arms” on May 9. This is remarkable coming from Chicago’s anti-gun rights Mayor. The political ideologues who are calling for violence and a “call to arms” are the same gun control fanatics who seek to deny Americans the right to armed self-defense.
This presents an imminent question: how will these people react if and when the Supreme Court acknowledges the constitutional right to keep and bear arms in the pending NYSRPA v. Bruen case?
A decision is expected in the Bruen soon, and no later than June. The limited question presented in Bruen is simply this: “Whether the state’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.”
Bizarrely, Second Amendment opponents claim that they would be losing their rights if the right to keep and bear arms is formally acknowledged for the purpose of self-defense outside the home. Should we be prepared for the same type of violent (over)reaction from the gun control supporters if the Bruen decision goes in our favor?
In an email to supporters on May 5, 2022, Everytown stated “If the Supreme Court is going to strike down our rights and protections, it will be up to our elected officials to keep us safe.”
Everytown simultaneously complains that “the future of critical gun safety laws could be at risk across the country” and that the Supreme Court might “strike down our rights and protections”: pic.twitter.com/GVgZogDrDH
— Rob Romano (@2Aupdates) May 5, 2022
What rights are the antis referring to? Their feelings? Not based in reality or fact, they want you to believe they have a right to feel a certain way. Perhaps we should flip the script on them and refer to these imaginary rights as nothing but “ghost rights.”
How does the Dobbs case and the Bruen case interact when the substantive question in one is about the right to abortion and the other is about the right to self-defense outside the home?
In the draft in what appears to be the Dobbs majority opinion, Justice Alito refers to a Second Amendment case, McDonald v. Chicago, to prove the point that enumerated rights contained in the Bill of Rights are applicable to the states via the 14th Amendment, and that the right to abortion is distinguishable, as it is not enumerated. Hence, it becomes a matter to be handled by the states.
Justice Alito wrote in his draft:
“The underlying theory on which this argument rests— that the Fourteenth Amendment’s Due Process Clause provides substantive, as well as procedural, protection for “liberty”—has long been controversial. But our decisions have held that the Due Process Clause protects two categories of substantive rights. The first consists of rights guaranteed by the first eight amendments. Those amendments originally applied only to the federal government, Barron ex rel. Tiernan v. Mayor of Baltimore, T Pet. 243, 247-251 (1833) (opinion of Marshall, C.J), but this Court has held that the Due Process Clause of the Fourteenth Amendment “incorporates” the great majority of those rights and thus makes them equally applicable to the States. See McDonald, 561 U.S, at 763-767 & nn. 12-13. The second category—which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.” See Page 11 Dobbs v. Jackson Womens Health Organization (2022)
If you recall, McDonald, applied the seminal Heller case to the States. Both Heller and McDonald will be relevant to any decision in NYSRPA v. Bruen.
Petitioners in Bruen argued to the Supreme Court, and cited McDonald, when they said that “New York prohibits its ordinary law-abiding citizens from carrying a handgun outside the home without a license, and it denies licenses to every citizen who fails to convince the state that he or she has “proper cause” to carry a firearm. In District of Columbia v. Heller, the Court held that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation,” 554 U.S. 570, 592 (2008), and in McDonald v. City of Chicago, the Court held that this right “is fully applicable to the States,” 561 U.S. 742, 750 (2010).”
Given the current Dobbs hysteria, we can anticipate a few things the civilian disarmament industry will say if the Court issues a positive ruling in Bruen. Let’s take a look and a few and suggest how we might react.
Gun Grabber Fiction: More children are going to die!
Reality: Perhaps the same people who are currently calling for violence on behalf of abortion rights shouldn’t be making this argument.
Gun Grabber Fiction: There will be an increase in gun violence!
Reality: Why are you only against gun violence? What about other forms of violence? Why haven’t your existing laws been effective? Criminals get guns no matter what the law says. Why are our lives not worth defending against violence? Why are you against law-abiding people defending themselves against violence?
Gun Grabber Fiction: This country will become the Wild West!
Reality: Why isn’t it already the “Wild West” when the majority of the country recognizes the right to carry, either constitutional carry or shall-issue permitting. Besides, who exactly makes this a wild west-esque country – criminals or lawful gun owners?
Gun Grabber Fiction: Accidental shootings will increase!
Reality: Education, not legislation, is the key. Creating fear isn’t a sustainable or effective plan. Make childhood education a priority with programs such as Project ChildSafe, and local level youth training programs.
Gun Grabber Fiction: There won’t be any more gun-free zones!
Reality: There is no such thing as a gun-free zone. There never have been. They’re a fantasy. Ask any criminal.
The usual gun-grabbers are protesting the Constitution itself. At the same time, they are denying our right as clearly articulated in the 27 words of the Second Amendment, they are calling for violence to support a right that’s articulated nowhere in the Constitution.
To the contrary, the petitioners in Bruen, and gun rights advocates are persistently pursuing a formal acknowledgment of the articulated, expressly memorialized right to self-defense in the Second Amendment to the U.S. Constitution. This is a true and fundamental right. Let us hope the Court recognizes this.
Disdain for the Constitution is at the root of this opposition. There have been violent attacks on pro-life organizations reported after the release of the draft Alito opinion. Does this mean anti-gunners will also become violent if and when, the Second Amendment is recognized by the Court in the Bruen case? Will gun shops and ranges face attacks just as churches have received after the Dobbs draft opinion was leaked?
If anti-gunners don’t like it, all they need to do is change the Constitution. The process is simple and open to everyone. They can utilize the same system that Second Amendment advocates have been using since courts failed to properly apply the plain language of the Constitution and the holdings of Heller and McDonald. Good luck with that.
Theresa Inacker, an attorney and Second Amendment advocate, is a member of the US Supreme Court bar, the New Jersey delegate to The DC Project, and serves as the Communications Director for the Coalition of New Jersey Firearm Owners.