Judging from social media comments, there is a lot of misunderstanding concerning the recent ruling by the 9th Circuit Court of Appeals in Peruta v. County of San Diego. The purpose of this article is to clear up the some of the confusion and to call attention to a potential scenario whereby the question of the 2nd Amendment ‘right to carry’ might ultimately be used by the left in an effort to damage the Constitution beyond the 2nd Amendment.
In Peruta, the 9th Circuit ruled that there is no 2nd Amendment right to carry a firearm in public. The states comprising the 9th circuit are: Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington. Because Peruta is a decision by the 9th Circuit, it affects only those states. Importantly, it does not make carrying a firearm illegal in those states. It doesn’t nullify or void or de-constitutionalize any 9th Circuit member states’ laws permitting citizens to carry. It merely states that there is no individual 2nd Amendment right to carry a firearm. Thus, states may choose to disallow carrying a firearm, but they are not required to do so. Any state in the 9th Circuit which chooses to permit carrying may do so. That has not changed. And the 9th Circuit decision has no direct legal effect at all in any state outside of the 9th Circuit.
Of course, that is not so say that the Peruta decision is no cause for concern outside of the 9th Circuit. If a citizen’s rights are infringed, we should all be concerned. Similarly, anytime an American court attempts to justify perceived impositions upon constitutional rights, we rightfully worry about the rule of law and the continued diminishment of our Constitution. Finally and most importantly, the practical ramifications of the 9th Circuit decision might be more profound and much more imposing than would initially appear.
In the event the Peruta decision is accepted on appeal by the Supreme Court, or a similar case from another Circuit results in such an appeal being accepted by the Supreme Court, then the Supreme Court will have the opportunity to decide for the entire nation what, if any constitutional right individuals have to carry firearms. Were the Supreme Court to issue a decision in accord with the holding in Peruta, there would be virtually no individual constitutional right to carry a firearm, whether concealed or open carry. Any state could legislate stringent restrictions or virtual bans. But again, they would not be obliged to do so. A rights respecting state would still have the ability to enable individuals to carry firearms despite the ruling that they have no 2nd Amendment right to do so. There is however a larger concern in the event all three branches of government align.
‘The Supremacy Clause’ of the Constitution is contained within Article 6 which provides in part that the “Constitution, and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” The Supremacy Clause made perfect sense when drafted because there was an expectation that the powers of the Federal government, limited as they were by the Constitution itself, would remain limited. The founders expected that any significant attempt by the Federal government to illegally expand its power would by rebuffed by the states and by the people.
The New Deal era ushered in a new age in Federal Government power. As I wrote more extensively Fildena 150, a Supreme Court which had been a stalwart protector of the Constitution against overreaching New Deal legislation, became compliant to Congress and FDR almost overnight. Where it had typically used judicial review of federal legislation to limit the Federal Government to its constitutional sphere, it began reinterpreting the now ‘living’ Constitution so as to enable a massive expansion of Federal Government power. One of its favorite and well-worn avenues for doing so was the misinterpretation of ‘The Commerce Clause’ of the Constitution.
Article 1, Section 8 of the Constitution specifies Congress’s powers. Included is the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The Commerce Clause was intended to enable Congress to regulate trade among the states so that it could be normalized and in order to avoid trade conflicts between and among the states. For decades that’s how it was utilized and interpreted. Only after the advent of the ‘living’ Constitution, did the Federal Government use the Commerce Clause to justify the widespread intrusion upon myriad private economic and personal relationships between and among individuals – and the Supreme Court rubberstamped virtually every expansion for decades.
Finally, in 1995 the Supreme Court decided the case of Lopez v. United States. In Lopez, the Court considered the constitutionality of the Gun-Free School Zones Act of 1990. The Act made it a crime to knowingly possess a firearm at a place that the person knows, or has reasonable cause to believe is a “school zone”. The statute in no way purported to regulate a commercial activity, nor did it require any link between the possession of the fire arm or the fire arm itself, to interstate commerce. The sole basis asserted for constitutional authority was that possession of a firearm in a school zone ‘substantially affects’ interstate commerce.
In its effort to defend the statute, the government argued that a firearm may result in violent crime and that violent crime in and around a school could be expected to affect the national economy in two ways. First, the costs are substantial and those costs are ultimately spread throughout the entire population. Second, violent crime reduces the desire or willingness of individuals to travel to areas deemed unsafe. Also, guns in and around schools could damage the learning environment ultimately resulting in a less productive economy. Based on this reasoning, the government contended that Congress had a rational basis to conclude that the statute would substantially affect interstate commerce.
The opinion was authored by Justice Rehnquist. Justices Thomas, O’Connor, Scalia and Kennedy joined in majority for the decision. The opinion identifies several prior cases where the Court found Federal legislation to be authorized under the Commerce Clause and argues that each involved an economic activity that substantially affected commerce. Specific examples provided are Hodel (“intrastate coal mining”), Perez, (“extortionate credit transactions”), Katzenbach (“restaurants utilizing substantial interstate supplies”), Heart of Atlanta (“inns and hotels catering to interstate guests”) and the infamous Wickard v. Filburn (“consumption of homegrown wheat”). The distinguishing factor in the Court’s decision to disallow the Gun-Free School Zones Act was the notion that the activity regulated was not commercial or economic activity. With Lopez, the Court finally drew a line in the sand beyond which it would not permit to Congress to use the misinterpreted Commerce Clause to legitimize an expansion of Federal power. If activity isn’t commercial or economic, the Commerce Clause won’t be read to authorize Congress to regulate it.
To be sure, the statists who desire an ever expanding Federal Government would like nothing more than to overturn Lopez and return the misinterpreted Commerce Clause to its former status as an infallible and infinite source of federal power – which brings us back to Peruta and its potential aftermath. One can foresee a two stage effort statists might employ to simultaneously achieve two goals; erode the 2nd Amendment and overturn Lopez.
The first stage would employ an appeal to the Supreme Court in an effort to nationalize the Peruta decision or some variation of it. The end goal would be a Supreme Court decision declaring that there is no 2nd Amendment right to carry a firearm, whether concealed or open carry. If that effort succeeds, the second stage would employ Federal legislation, purportedly authorized by the Commerce Clause, to make concealed carry illegal nationally. Because of the Supremacy Clause, any such legislation would override any state legislation recognizing the legality of concealed carry.
Of course, the Federal law banning carrying nationwide would necessarily result in an appeal to the Supreme Court based on Lopez. It’s one thing for the Supreme Court to have ruled in the first stage that there is no 2nd Amendment right to carry. It’s another thing altogether for Congress to assert the authority at the Federal level to ban carrying firearms. Lopez established that there is no such authority under the Commerce Clause. Thus, the left would seek to overturn Lopez. If successful, the statist effort could result in a Supreme Court decision that both recognizes the legitimacy of Federal legislation outlawing the carrying of firearms and overturns Lopez thus reopening the font of illegitimate federal power that was the misinterpreted Commerce Clause.
I’m not predicting this scenario will come to pass or even that statist forces will make the effort. But if the day comes when statists judge that the Supreme Court would seriously consider nationalizing the Peruta decision and overruling Lopez and that Congress would pass national concealed carry legislation, it would be extremely naïve to believe that they wouldn’t make the effort. The left is nothing if not patient and should be expected to make this effort when the time is right even if not for many years. Those who would defend the Constitution, federalism and individual liberty should be mindful of such a strategy and vigilant if circumstances develop which tend to indicate such an effort is underway.