SCOTUS Rejects Peruta and Binderup

By Jeff Knox : Opinion

Lady Liberty Justice
SCOTUS Rejects Peruta and Binderup
Firearms Coalition
Firearms Coalition

Buckeye, AZ –-(Ammoland.com)-   It is extremely disappointing to report that the Supreme Court of the U.S. has rejected the petitions for their review of the cases Peruts v. San Diego County, and Binderup v. Sessions, but it's better to have the cases rejected than to have them heard and lost.

And unfortunately, winning either of these cases with the current justices wasn't anywhere close to a sure bet.

The Binderup case challenged the practice of a lifetime loss of gun rights for a non-violent crime, while Peruta challenged California's “may issue,” concealed carry permitting system, as it was being applied by San Diego County. Both were being closely watched by rights advocates nationwide, especially Peruta, as it could have finally affirmed that “the right of the people to keep and bear arms,” actually does include a right to carry a gun for lawful purposes outside the home. It would have also addressed the divide between circuits regarding the standards to be applied in ruling on Second Amendment cases.

Binderup could be considered a win, as it was decided in favor of the plaintiffs in the 3rd Circuit, and that decision will be allowed to stand, but Peruta, which was decided in favor of the government in the 9th Circuit, will also be allowed to stand, and that is a travesty.

There are three standards for testing a law's constitutionality, based on how directly the law impacts individual rights. The lowest level is called “rational basis.” To pass this test, those challenging the law must show that it has no rational relationship to advancing a particular government objective. The second level, known as “intermediate scrutiny” is almost the same, but places the burden of proof on the government to prove that it has a compelling reason for the law. The highest level is called “strict scrutiny.” This is supposed to be applied whenever the challenged law interferes with a “fundamental” right, particularly those enumerated in the Bill of Rights, or if the law appears to have a component based on the race, gender, ethnicity, or religion of individuals. Under “strict scrutiny,” the government must prove a compelling reason for the law, and prove that the law is the least restrictive way of realizing that compelling reason. Generally speaking, almost anything can be justified under “rational basis” and “intermediate scrutiny” a – if the judge supports it – but laws that are examined under “strict scrutiny” usually fail.

It seems obvious to rights advocates, that “strict scrutiny” should be the standard applied to any Second Amendment case, especially in light of the McDonald decision's defining of Second Amendment rights as “fundamental.” But courts have tended to apply “intermediate scrutiny” or “rational basis,” because if they applied “strict scrutiny,” the government would have to prove that the laws actually serve a valid purpose, and as anyone who has studied gun laws knows, they don't work, therefore they cannot be proven to be serving a compelling government interest, much less that they are narrowly tailored to be the least restrictive possible means of accomplishing those goals.

The decisions of the Supreme Court not to review these cases, demonstrates something that The Firearms Coalition has been saying since before the death of Justice Antonin Scalia: The Supreme Court does not have a pro-rights majority, and will not have one until at least two more justices are replaced.

Since Heller and McDonald, the Court has had several opportunities to review Second Amendment cases related to carry outside the home, and restrictions on firearms based on their appearance or the capacity of ammunition feeding devices. In every case, the Court has refused to take up the issue. This was true when Scalia was still alive, and it remains true now that Gorsuch is on the Court.

'Scalia-esque' approach to jurisprudence
The good news that comes out of the Court's decision to reject the Peruta petition, is that it appears to confirm that Justice Gorsuch is indeed solidly in the pro-rights camp.

The good news that comes out of the Court's decision to reject the Peruta petition, is that it appears to confirm that Justice Gorsuch is indeed solidly in the pro-rights camp. He joined in a dissent penned by Justice Thomas, contending that the Court should have agreed to hear Peruta, and settle these important issues. That give us some hope for the future. But it was Justices Ginsburg and Sotomayor who dissented from the decision rejecting Binderup, suggesting that they think they could have won that one, and that rights supporters might have dodged a bullet.

The “liberal” wing of the Court has a solid block of 4, proven, anti-rights justices, but the “conservative wing appears to be split on the issue. Chief Justice Roberts and Justice Kennedy have indicated a reluctance to delve back into Second Amendment questions, while Justices Thomas, Alito, and now Gorsuch seem much more inclined to settle the issues.

Rumor mill in D.C. is suggesting that Justice Kennedy, who is 80, might be preparing to retire, possibly at the close of the current term. A Trump replacement for Kennedy would probably shore up the pro-rights majority, but even if Kennedy's replacement is as stalwart as Thomas, that would still be no guarantee for Second Amendment watchers. Roberts' reticence to take any action that might shake up the judiciary, is well established, and 4 votes for rights is not enough to win the day.

Justice Ginsburg who is 84 this year, has been expected to retire any day for at least a decade, but she keeps charging ahead, and it is virtually inconceivable that she would willingly give up her seat knowing that Trump would name her replacement. If she is physically able, expect Ginsburg to hold out to at least the middle of 2020, when her retirement would become a major election issue in the presidential race.

The Court's refusal to hear these cases is very disappointing, but not unexpected. The most promising case for getting a hearing, is a challenge to Maryland's draconian “assault weapon” and “high-capacity” magazine bans. That petition won't get to the Court until next term, at the earliest, though. In that case, the 4th Circuit blatantly misrepresented a part of the Heller decision, and the justices tend to be very touchy about that sort of thing, so it is very unlikely that they will allow that to stand. But they could just “summarily reverse” the decision, sending it back to the Circuit without hearing or offering a ruling. Right now, that seems like a likely possibility, but predicting Supreme Court actions and outcomes is like betting on roulette. Our energy is much better spent applying pressure to legislators.

Neal Knox - The Gun Rights War
Neal Knox – The Gun Rights War

About Jeff Knox:

Jeff Knox is a second-generation political activist and director of The Firearms Coalition. His father Neal Knox led many of the early gun rights battles for your right to keep and bear arms. Read Neal Knox – The Gun Rights War.

The Firearms Coalition is a loose-knit coalition of individual Second Amendment activists, clubs and civil rights organizations. Founded by Neal Knox in 1984, the organization provides support to grassroots activists in the form of education, analysis of current issues, and with a historical perspective of the gun rights movement. The Firearms Coalition has offices in Buckeye, Arizona and Manassas, VA. Visit: www.FirearmsCoalition.org.

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    Eric_CAWild BillSilence DogoodGilJim Macklin Recent comment authors
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    Jim Macklin
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    Jim Macklin

    Only California and Hawaii deny self-defense and lawfully carrying a weapon. The other states in the 9th Circuit are shall issue and nothing changes in Arizona, Alaska, Nevada or Montana.comment image
    The SCOTUS is very busy and only agrees to hear a few cases. Being denied a hearing does not have anything to do with the merits of the case.
    A number of cases will soon be ready for a Supreme Court appeal and Trump may get one or two more Justices by then.
    Patience.

    Silence Dogood
    Guest
    Silence Dogood

    Jim Macklin, once again you are spreading misinformation and unjustified conjecture. Kalifornia does not “deny self-defense.” Kalifornia is getting closer, however as for legal “concealed carry,” as it stands now, it’s entirely up the the Local County Sheriff or City Police Chief if an “concealed carry” permit is obtainable. A reprehensible state for sure,but far from “deny self-defense.” 12 of the 58 Counties make it virtually impossible to legally “conceal carry.” However, that leaves 46 other Kalifornia Countries where legal “conceal carry” is a viable option. No question that Kalifornia sucks, you’ll never get me to side with Kalifornia, but… Read more »

    Jim Macklin
    Guest
    Jim Macklin

    It is easy to get a CCW in California, Be a Hollywood or Silicon Valley multi-million or billion heir or move to a low population county. Most of the California residents live and work in one of the counties that refuse to issue a license to carry.

    Effectively, without a weapon, self-defense is illegal.

    Could you point out exactly what misinformation or unjustified conjecture I have ever posted on-line?

    Silence Dogood
    Guest
    Silence Dogood

    Jim, I don’t have to point anything out…you just did…once again!

    Jim Macklin
    Guest
    Jim Macklin

    Mr. Dogood, it seems your material is dated as updated in 2015 and it is out of any reasonable currency.

    I do think that you are more of a troll than an interested commentator. So I will ignore your posts and specif and pointless comments about me peresonally. Good day.

    Silence Dogood
    Guest
    Silence Dogood

    Macklin, your cheap insult aside…you’re still wrong in all your “statements.” You are entitled to ignore the valid “links” I posted. You can not deny the validity and truth of what I posted, but clearly you intend to just that.

    Gil
    Guest
    Gil

    Aw, you can’t redeem your honor by shooting or threatening to shoot someone dead. Poor diddems.

    Silence Dogood
    Guest
    Silence Dogood

    The answer is simple:
    1) Stack the Supreme court with Originalist Judges
    2) Stack teh Federal Appeals Courts with Originalist Judges
    3) Stack the Federal District Courts with Originalist Judges
    4) Convene an Article V “Convention of States” and finally resolve a few issues with language in the U.S. Constitution and Amendments.
    Not an easy solution, but the only long-term solution

    Jim Macklin
    Guest
    Jim Macklin

    A Constitutional Convention might just do away with the Bill of Rights. We will win with the Constitution and history we have without risking a total re-write.
    The Second Amendment and the Fourteenth Amendment are on our side. Trump is on our side and Gorsuch and Thomas are on our side.

    Charles Nichols
    Guest
    Charles Nichols

    Not to worry. My California Open Carry appeal is up next and the 9th circuit court of appeals will be forced to decide whether or not the Second Amendment applies past the doors to our home. A question the en banc panel in Peruta v. San Diego did not decide and a question that Justice Thomas’ dissent to denial of cert said should have been decided by the en banc panel.

    Charles Nichols
    President of California Right To Carry
    http://CaliforniaRightToCarry.org

    Rich....
    Guest
    Rich....

    If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand! In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under… Read more »

    Wild Bill
    Guest
    Wild Bill

    @Rich, You have your finger on the pulse, brother. Andrew Jackson said “The Supreme Court has made its decision. Now, let’s see the Court carry it out.” They are three co-equal branches. The chief executive could assert that the Supreme Court and the lower federal courts have no power to issue orders to anyone in my branch. Anyone in the executive branch that follows orders from any other branch will be immediately fired. The chief exec could reply to the S. Ct. that any orders you desire to issue will come to my office, and I will take them under… Read more »

    Eric_CA
    Guest
    Eric_CA

    Wild Bill,

    Your posts always enlighten me. I was wondering if and when the Executive Branch (Trump) will tell the Judiciary Branch to shove it.

    I wonder how much longer Ginsburg will last?

    Wild Bill
    Guest
    Wild Bill

    @Eric, Oh, thank you. I don’t know when, but he could assert that he is the head of a co-equal branch and that the Judiciary has over stepped it authorities. President Andrew Jackson did.
    I’d send Granny Ginsburg a case of gin if I thought that it would help.

    Eric_CA
    Guest
    Eric_CA

    @Wild Bill,

    It would be interesting to see a show down between those two branches of government.

    Well, since that old hag Ginsburg prefers the constitution of South Africa, I’ll go one step further and give her a one-way ticket to South Africa.

    David Gregory
    Guest
    David Gregory

    Great article by Jeff Knox. It is unsettling that our Second Amendment rights hang by such a slender margin.