The First Monday in October
The beginning of the Supreme Court term is always the first Monday in October. I have always thought that the judiciary was the most important part of our government. It is one of the few examples in the history of social organizations where a true check exists against unreasonable legislative and executive passions.
As I have mentioned before, all legislation is an abridgment of freedom. Sometimes that abridgment is necessary for a society to function, but any prohibition on my actions is, by definition, a limitation on my freedom. To ensure that the least level of infringement is abrogated, we use the crucible of the legislative process to “make laws”. The problem is our legislators are political animals and will swing towards the largest demographic group they can to ensure continued electoral support.
The only way to ensure minority rights… (minority meaning race, sex, thought, political affiliation, etc.)… is to ensure a strong judiciary rooted in fundamental Constitutional principles. When the judiciary expands through activism into the legislative field, the whole scheme becomes compromised. Fortunately, the last few justices added to the Supreme Court have either taken an originalist approach or a textualist approach to Constitutional interpretation. Regardless of the school of thought, this is far more desirable than the activist approach that has been plaguing us for the last 50 years.
This brings us to the elephant that is about to trample into the temple of gun control offices: New York Rifle and Pistol v. New York. This case is slated to have oral arguments presented on December 2nd of this year.
I believe this will be a case that will be considered as much of a watershed as Heller v. District of Columbia when it comes to Second Amendment jurisprudence. As such, the implications for us in California are substantial.
(If you have arrived here from our newsletter, continue reading here…)
In Heller, the Court said that the Second Amendment is a fundamental, enumerated individual right. Ergo it is now incorporated in State Constitutions via the Fourteenth Amendment. As a fundamental right, a test is required to determine if a statute that is passed by a legislature unduly burdens the Second Amendment. There is a sliding scale that is used when it comes to Constitutional tests with “strict scrutiny” being considered the top of the food chain and the most restrictive to government regulation of a right (compelling state interest with no less restrictive alternatives). This test is used when a specifically enumerated right is burdened by suspect legislation. If it is not a specifically enumerated right, then we use the lower standard of “rational basis” (legitimate state interest with a rational relationship between the statute and the state interest). Generally speaking, when the test is strict scrutiny the State loses; when it is rational basis the State wins.
Appellate courts hostile to the Second Amendment acknowledged that they could not use rational basis, but claimed no specific instructions to use strict scrutiny… thus they developed out of whole cloth the concept of “intermediate review” (not rational basis, but not as strict as strict scrutiny… and surprise, surprise… all anti-gun legislation passes this test).
With New York Rifle and Pistol v. City of New York, the Court is poised to end this intellectual gymnastic program once and for all. With the new make up of the court, there is large suspicion that it will declare the necessity for strict scrutiny be used for all Second Amendment litigation. This will have a dramatic effect on California gun laws (in our favor).
Watch for the oral arguments in December; specifically, watch for the questions posed by Justices Gorsuch and Kavanaugh. I suspect ultimately a four-to-four ruling, with Kavanaugh issuing a concurrence with the conservatives of the Court.
Regardless… this one is going to be fascinating to watch!
Steven Lieberman and Sandy Lieberman are the owners of the Artemis Defense Institute. A tactical training facility headquartered occupied California. (adi.artemishq.com). Mr. Lieberman is also one of the founding partners in the Law Offices of Lieberman and Taormina LLP. Their law firm specializes in use of force, and Second Amendment defense and litigation.