It’s a Little Thing Called the Bill of Rights

Writing in the Inquirer, area attorney Gregory Sullivan writes about the recent Third Circuit decision in Drake v. Folko, upholding New Jersey’s carry restrictions:

Letting the permit law stand is consequently the best result. But why are federal judges even involved in this area?

Do we question why federal judges are involved in cases like freedom of the press or freedom of religion? No, because it’s a fundamental right guaranteed by our constitution. It doesn’t emanate from penumbras like some recently discovered rights. It’s right there staring you in the face.

Moreover, the Constitution provides no help on how to assess gun regulations.

I don’t think “shall not be infringed” is any less clear than “Congress shall make no law.”

Prior to Heller and McDonald, our gun laws were the subject of frequent and robust debate in state legislatures. They were being revised as needed, and voters maintained ultimate control over them. With the Heller-McDonald catastrophe, that control is almost completely lost. The complex policy questions on gun-carry laws will now be decided, ultimately, by a small group of lawyers in Washington at the Supreme Court.

Yes, that’s generally how enforcement of constitutional rights are supposed to work. Does this guy read the same Constitution the rest of us do? Rights are supposed to be beyond the reach of the political process. That’s the whole point. There are certain debates state legislatures shouldn’t be able to have, like whether or not to allow newspapers to be published freely, what kind of books you can own, and yes, whether or not an ordinary Joe can carry a firearm.

11 thoughts on “It’s a Little Thing Called the Bill of Rights”

  1. You stated:

    I don’t think “shall not be infringed” is any less clear than “Congress shall make no law.”

    I do see a difference:

    “Shall Not Be Infringed” applies to EVERYONE, Federal Government, States, Cities, perhaps even individuals.

    “Congress shall make no law” specifically prohibits congress from passing a law, and does not necessarily mean that a State Legislature or City cannot.

  2. ““Congress shall make no law” specifically prohibits congress from passing a law, and does not necessarily mean that a State Legislature or City cannot.”

    I don’t want to get into the constitutional nuances, so I’ll just say that since the 14th Amendment, yes it does.

  3. I just want to make one of my annoying comments, that this duality about the constitution is largely independent of ideology.

    Very recently in other venues, I have encountered a number of people who a few weeks ago were arguing (correctly) that the “will of the people” to have gun control was irrelevant, because the 2nd Amendment defined a constitutional right; and often they went on to damn the concept of “democracy” vis-a-vis constitutional rights. But, now I hear the same people attacking “activist judges” for overturning the “will of the people” by overturning “democratically voted on and enacted” Proposition 8 in California. “Democracy” seems to have returned to favor.

    This is related to the issue of Register of Wills Hanes in Montgomery County, PA, who has been issuing same-sex marriage licenses in defiance of state law banning that, because, Hanes says, he believes the state law to be unconstitutional. Him they want hung, while some time back I heard the same people gushing over “Constitutional Sheriffs” and “nullification.”

    People would be comical if they weren’t so dangerous.

    1. Except homosexual marriage is not a Constitutional right and there is no discrimination against homosexuals…it’s just that they do not like the choices they have for marriage partners (i.e. of sufficient age, not closely biologically related, not under duress, and of the opposite sex).

      So, yes, the people do have a voice in how marriage is defined since it is not established as an intrinsic power of the government. It is retained to the people.

      1. Ah, but my point was that a federal court rejected Prop 8 on constitutional grounds — “Equal Protection Under the Law” if I recall correctly — and whether we as individuals agree or not, the constitution was the foundation for the decision. But the people disagreeing reverted to the argument that the “will of the people” should have been respected, instead, or somehow counted in the court’s decision.

        I’ll repeat, you can’t have it both ways; “the constitution” one day, or the “will of the people” the next, depending on which will deliver the outcome you are hoping for.

        1. No, SCOTUS rejected the Prop 8 defenders’ case because of “lack of standing”, because the state attorney general decideed he wasn’t going to defend the law in court.

          The lower court federal judge who ruled it unconstitutional should have recused himself — he having a PERSONAL stake in the outcome of the case, and ruled in a manner beneficial to himself.

          As I understand it given SCOTUS’s ruling, the federal ruling he issued is moot — due to a lack of standing, there never WAS a “case or controversy” to be decided once the state of California decided to not defend the constitutional amendment passed by popular initative in accordance with state law.

          Federally, there IS no ruling on whether a state can prohibit conducting same-sex marriage. There is a ruling that says that the federal government cannot refuse to recognize a same sex marriage deemed valid by the state in which the reside or were married. Not because of equal protection, but because the definition of marriage is a state authority wholly outside federal authority.

  4. This shows that for the antis Heller and McDonald were disasters to their cause.

    And also that they hate the very idea that someone can even challenge a gun control law, even if they lose the challenge itself angers them.

    Which fits with their playbook where they point out that gun grabbers should maintain that no gun control law could ever be unconstitutional.

    And all to defend a system where the police are empowered to pick and choose who can and cannot have a right.

  5. My only question is why, in light of Heller/McDonald, that “gun control” laws still are around. What good is a SCOTUS judgement that does pretty much nothing in the real world?

    1. Well both DC and Chicago’s handgun bans were struck down.

      And then Illinois eventaully got a Conceal Carry (to be implemented).

      So there were some laws that were struck down.

      The problem is that many places (like the 2nd Court and the 3rd Court) will rubberstamp any gun control as being Constitutional. See how NYC’s fees aren’t a burdern or how the May Issue is a-okay in NJ and NY.

      1. Yeah, now that they are at the point that its a right, the question is how much is protected. The antis want it to be as restricted as possible but still a right, so the judges are trying their damndest.

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