Third Circuit: Second Amendment is a Second Rate Right

Standard Capacity 223 Magazine Bans Ammunition
Standard Capacity 223 Magazine 

U.S.A. -(Ammoland.com)- In a split decision, a three judge panel at the Third Circuit Court of Appeals effectively ruled the Second Amendment of the Bill of Rights is a second-rate right, not entitled to the full protections of other enumerated rights.  The opinion was filed on 5 December, 2018. The case is Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey, No. 18-3170 (3rd Cir. 2018).

The two majority judges followed the trend of other Circuits where the Second Amendment is being degraded and reduced to second-rate status.  Only a month ago, the First Circuit ruled the Second Amendment does not apply outside of the home.

The rogue Circuits are able to do this because the Supreme Court has been refusing to hear Second Amendment cases for nearly a decade.  The Supreme Court only hears a limited number of cases. They are not required to hear all cases.

Some Circuit courts are gutting the Second Amendment by claiming it is not really a right. Rather, they say, it is a privilege the government may regulate if the government thinks it might do some good to regulate it.  These Jurists seem embarrassed by the Second Amendment. They seem to believe their job is to limit it as much as possible, rather than to protect it as a fundamental right.

Judge Stephano Bibas wrote the dissenting opinion in the Third Circuit ruling. He is an outstanding jurist who was appointed by President Trump.  At only 49 years old, he is already the 15th most cited jurist by the Supreme Court. His resume is impressive. It is easy to see why President Trump chose to appoint him. His dissent runs to 19 pages. The first four paragraphs eviscerates the majority decision. From uscourts.gov:

The Second Amendment is an equal part of the Bill of Rights. We must treat the right to keep and bear arms like other enumerated rights, as the Supreme Court insisted in Heller. We may not water it down and balance it away based on our own sense of wise policy. 554 U.S. at 634-35.

Yet the majority treats the Second Amendment differently in two ways. First, it weighs the merits of the case to pick a tier of scrutiny. That puts the cart before the horse. For all other rights, we pick a tier of scrutiny based only on whether the law impairs the core right. The Second Amendment’s core is the right to keep weapons for defending oneself and one’s family in one’s home. The majority agrees that this is the core. So whenever a law impairs that core right, we should apply strict scrutiny, period. That is the case here. 

Second, though the majority purports to use intermediate scrutiny, it actually recreates the rational-basis test forbidden by Heller. It suggests that this record favors the government, but make no mistake—that is not what the District Court found. The majority repeatedly relies on evidence that the District Court did not rely on and expert testimony that the District Court said was “of little help.” 2018 WL 4688345, at *8. It effectively flips the burden of proof onto the challengers, treating both contested evidence and the lack of evidence as conclusively favoring the government. 

Whether strict or intermediate scrutiny applies, we should require real evidence that the law furthers the government’s aim and is tailored to that aim. But at key points, the majority substitutes anecdotes and armchair reasoning for the concrete proof that we demand for heightened scrutiny anywhere else. New Jersey has introduced no expert study of how similar magazine restrictions have worked elsewhere. Nor did the District Court identify any other evidence, as opposed to armchair reasoning, that illuminated how this law will reduce the harm from mass shootings. Id. at *12-13. So New Jersey cannot win unless the burden of proof lies with the challengers. It does not.

If the Supreme Court grants a writ of certiorari (the legal term for agreeing to hear a case before the Supreme Court), Judge Bibas’ reasoning is rock solid.

For those who do not follow these cases closely, here is a short explanation of the different levels of scrutiny.

Strict Scrutiny – The highest level of protection, reserved for fundamental Constitutional rights.  To pass this level of legal examination, a law, regulation, or other restriction of a Constitutional right must be required by a compelling state interest, and the restriction must be narrowly tailored to achieve that result. The burden of proof is on the government.

For example: There is a general prohibition on shouting “Fire” in a crowded theater, when there is no fire. This is a restriction on the First Amendment right of freedom of speech. The prohibition serves a compelling state interest of public safety. The restriction is narrowly tailored to ban shouting false information that causes severe, direct, physical, harm to others.

A corollary for the Second Amendment would be a general prohibition on firing a gun in a crowded theater when there is no reasonable, deadly threat.

Intermediate Scrutiny- The middle level of protection of less than fundamental rights. The law or regulation must serve an important government objective, and be substantially related to achieving that objective. The burden of proof rests with the government. This level is fairly new, only existing since 1976.

Rational Basis – The lowest level of protection. Generally not applied to rights. It essentially is no protection at all. The party challenging the law or rule has the burden of proof. They have to show the government has *no* legitimate interest in the law, rule, or policy. They have to show there is *no* conceivable rational basis for the law, even if the government never stated one. Laws, rules, or policies are almost never struck down on this basis.

Judge Bibas shows the two majority judges collapsed the level of scrutiny from strict scrutiny to rational basis, while calling it “intermediate scrutiny”.

Second Amendment supporters know the Third Circuit ignored the rule of law and applied their own, cherished, leftist, Progressive, biases to gut Second Amendment protections in this case.

Judge Bibas, in his masterful dissent, shows how they did it.


About Dean Weingarten:Dean Weingarten

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of constitutional carry was attained. He has degrees in meteorology and mining engineering, and recently retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

213 Comments
Inline Feedbacks
View all comments
John Gresham
John Gresham
2 years ago

The second amendment needs to be abolished. Owning a firearm of any type needs to be strictly regulated. Owners of firearms need to have liability insurance coverage. Federal and state taxes need to be increased substantially on firearm purchases as well as the purchase of ammunition. All firearms need to be manufactured with microchip technology that allows only it’s owner to unlock the safety to allow the firearm to be fired.

John Dunlap
John Dunlap
2 years ago
Reply to  John Gresham

Why don’t you just move to North Korea? You’d be happier there, I think.

Just Stop It
Just Stop It
2 years ago
Reply to  John Gresham

Wow, a communist trolling a gun site. How (yawn) original.

Now go back to the Democratic Underground and explain how you were brave enough to talk tough to the grown-up’s, and get your back pats and high fives.

We’ll just keep on owning guns, softly chuckling at the soy boys like you…

Art Weaver
Art Weaver
2 years ago
Reply to  John Gresham

Our government did not grant us our rights by means of the Constitution and Bill of Rights. It recognized our God given rights and spelled out those that were most likely to be challenged with the purpose of making it clear THAT THERE IS NO CHALLENGE TO CONSTITUTIONAL RIGHTS. The limitation and extent of those rights is already spelled out in the preamble and several other areas. There was never any need to define yelling fire as not being acceptable free speech. The Constitution was also NEVER intended to be modified or used to create or eliminate laws…. Using it… Read more »

Martin
Martin
2 years ago

These judges are extremely biased and do not understand the Constitution at all.
If the Second Amendment is taken away, then the judiciary and central government will not have citizens in this Nation, they will have slaves.
I, for one, will NOT be a slave.
I have enough trouble with the amount of taxation at all levels of government. If is way beyond the taxation that sent us to war against King George and his Ministers.

2nd Amendment Supporter
2nd Amendment Supporter
2 years ago
Reply to  Martin

They understand perfectly what 2nd Amendment means. They’re just violated their oaths of office committing treason, and working the United Nations Agenda 21/AGENDA 2030, and just signed his own confession by giving that opinion.

Brandon McCauley
Brandon McCauley
2 years ago

Yelling fire in a crowded theater is not a violation of the first amendment. Yelling fire is not speech. It is a call to action.

Logan
Logan
2 years ago

WRONG

It is NOT illegal to yell “fire” in a crowded theatre. That law was based on the aliens and sedition acts. Both were found to be unconstitutional. You can legally shout “fire” in a crowded theatre, but if there is a stampede and people are injured because of it, you can be held accountable if it can be proven in court that you had intent to cause a dangerous circumstance. If no danger is created and you cant be proven to have had criminal intent, then you cant be charged with anything. The theatre can simply ban you.

Kevin
Kevin
2 years ago

The second admenent was designed to give us the right to protect us against the government in case they get to much power or try to strip us of.rights. We also have the right to abolish any form of government we deem unjust. If they keep trying to take our rights away we as a people need to say no and that’s it if they want to presist then they can try to.by force . Bc I’m not giving up any rights . And one protection doesn’t come from a government it’s a natural thing any life form has the… Read more »

Core
Core
2 years ago

Good job Judge Stephano Bibas! We need to disbar these unconstitutional judges or hang them in the streets. Our right to bear arms shall not be infringed! Let’s bring the fight to the circuits and take it to the Supreme Court! If they won’t hear it, we will try it in the streets! All such unconstitutional rulings shall not be valid nor enforced: it’s time to regain America’s freedom from the corrupt wigs that seek to subjugate us!

brembe01 .
brembe01 .
2 years ago
Reply to  Core

You’re right, all rights are equal. I mean felons have a free speech right so why shouldn’t they have a right to “bare arms”, hahahaha!

Jack Mac
Jack Mac
2 years ago
Reply to  Core

We need lots of rope. Suggest everybody stock up before the Feds list it as destructive device. The Hangman’s nose, already banned I think, uses to much rope anyway and is not necessary. A new thought of hanging judge should be brought to the public psychic. Our citizens that hold positions of authority are selected and payed to provide government services by and for citizens. When authority holders increase their power and decrease their service all other citizen will become subjects of their rule. In the USA we have rich and the poor, but no common man or elite. As… Read more »

Greg K
Greg K
2 years ago

All of our rights have been Judged as “Second Rate Rights.” Look through your Constitution. They violate our rights before they even get to the “Bill of Rights.” It’s been going on for a very long time, incrementally. This is exactly why we must call out ALL Violations of our Rights, no matter what justification our ELECTED SERVANTS assign to violating them.

It’s time to square things up!

J marc
J marc
2 years ago

Read the Constitution. Article 1 section 8. The law of the Land where dreams of armed insurrection and un fettered , gun rights without well regulated 2nd amendment proscriptions die a quick and solid death.

Ronofdoom
Ronofdoom
2 years ago

I’m pretty sure the Supreme Court already ruled on the 2nd Amendment and said nothing about it being a second rate right whatever the hell that means. More extreme left liberalism trying to twist the laws and Constitution hoping that we will just accept what they say even the ruling itself is unconstitutional. It’s time for the Supreme Court to weigh in on this and I’m confident they will strike it down.

dwest
dwest
2 years ago

Molon Labe. mic drop.

Eric Stephenson
Eric Stephenson
2 years ago
Reply to  dwest

I hope you mean it. Because they will try

Thorsson
Thorsson
2 years ago

Their citizenship is 2nd rate and they should spend a stretch in gitmo

Art Weaver
Art Weaver
2 years ago

These excuses for jurists should be put on notice. The people will not tolerate this transparent manipulation of the law to undermine the Second Amendment. The tipping point is rapidly approaching with unconstitutional and illegal “red flag” confiscations already underway and clearly targeting citizens that will fervently protect their rights. This continuing push to gut the Second Amendment absolutely will lead to a full scale response in defense of Constitutional rights that will escalate to violence based on our governments known proclivity to use violence against it’s citizens in order to gain compliance. These jurists had better carefully consider the… Read more »

pyddle my dyddle
pyddle my dyddle
2 years ago
Reply to  Art Weaver

bullshit. the peeple are sheeple andtheyll accept and submit to whatever is done to them. Without a whimper of protest.

Art Weaver
Art Weaver
2 years ago

You obviously haven’t been paying attention.
We’ve already seen resistance against the growing tyranny!
Political, passive, and aggressive!
Many are fed up with illegal and unconstitutional interference by and on the behalf of the US government.
The militias are growing in both numbers and capability. They are rapidly establishing dozens of bulwarks accross this nation that will become no go zones for federal authority and representatives.
What is going to shock folks like you is that several state and thousands of local governments are going to support the militias in recovering Constitutional governance!

Ronald William Mellish
Ronald William Mellish
2 years ago
Reply to  Art Weaver

Absolutely, I agree wholeheartedly with the above-stated comment on the 3rd Cir. dissenting opinion of Judge Bibas. His well reasoned dissent, a portion of which is quoted, should be the foundation stone of an eventual Supreme Court granting of certiorari. We need Judge Bibas to be on the Court replacing, hopefully, RBG.

Keith Wilson
Keith Wilson
2 years ago
Reply to  Art Weaver

Truncating the second amendment again? One pers
on is not a well regulated militia – especially one with no training. Ever hear of state national guards? That’s a militia, trained and well regulated. It isn’t about taking guns away. It’s about stopping idiots and untrained morons from accidentally or purposely killing us and our children. It’s about protecting the other rights listed in The Constitution. Did Obama take your guns? Trump is the only one who has proposed that.

John Dunlap
John Dunlap
2 years ago
Reply to  Keith Wilson

I am a self taught hobby blacksmith and machinist with an educational background in the sciences. There are millions like me throughout the population, many much more skilled than I am. Do you honestly believe that ANY law can keep those with determination and violent intent from obtaining whatever weapons they want? The kind of regulation and control you want only creates business opportunities for the black market. Even a cursory reading of the Founding Fathers’ writings shows that they weren’t discussing a state run militia, but the body of the population as a whole. But just for chuckles, why… Read more »

Rodney Wiggins
Rodney Wiggins
2 years ago
Reply to  Art Weaver

Amen, let’s take it to the streets

Steve
Steve
2 years ago

” When injustus becomes Law , Resistance becomes Duty ”
Thomas Jefferson

Joe
Joe
2 years ago
Reply to  Steve

We should form a posse and citizen arrest there treasonous judges.

Debbie Wesselman
Debbie Wesselman
2 years ago
Reply to  Steve

So many important truths are clearly stated with so few words. Eliminates all ambiguity.

Ug
Ug
2 years ago

So by their logic having only one round in the magazine is also does not infringe the 2A?

Georgia schultz
Georgia schultz
2 years ago

We are not a 3 world nation..our forefathers put that 2nd amendment there to protect us from our government. I doubt Americans will just gladly accept whatever these leftists want. We still do have rights. Who the HECK voted these people in office, of course some are just brought in unnoticed and are slowly chipping away at our rights.

Ducky
Ducky
2 years ago

This writer is SO BIASED against the decision it literally doesn’t matter who, why, or how it happened, you’re just butthurt. Like a little snowflake.

Jennifer McPherson
Jennifer McPherson
2 years ago

If you dissect the 2nd amendment and find out what the words mean today you would understand how it applies to today.

John Dunlap
John Dunlap
2 years ago

That’s the “living document” argument, and it is incorrect. The language must be interpreted according to the meaning of the words at the time it was written, or the original intent is lost and the entire Constitution becomes meaningless. A process for altering sections that no longer serve their intended purpose, due to societal changes or other reasons, was provided, in the amendment process. When judges ‘reinterpret’ legal language based on their own concepts of what the words mean today, they are actually making law, and assuming powers rightly belonging to the Legislative branch.

Jason Armstrong
Jason Armstrong
2 years ago

I just have to say that this is not a simple matter and it deserves to be heard by the Supreme Court. I agree that citizens have the right to bear arms, and I’ll go a step further. If you look up the letter of the law, the Constitution states that we have the right to possess the same firepower that our government has. That being said, do i want somebody to have access to a mini-gun, rocke launchers or C-4? No, because at some point someone will think it’s a good idea to walk into a crowded place and… Read more »

grizzman1
grizzman1
2 years ago

How can you protect yourself from a tyrannical Gov., if you don’t have the same firepower?

Michael Pinkston
Michael Pinkston
2 years ago

You people just don’t get it.
They (the controlling elite) are going to take small bites until thier is nothing left.
They control both sides, therefore giving you the sense that one side is fighting for you.
Wake up sheeple.
To find out who rules over you, ask who you cannot criticise..
Hint: They are responsible for what happened to the USS LIBERTY.

D. Alighieri
D. Alighieri
2 years ago

, Hint: the “elitists” live in cities.

KuhnKat
KuhnKat
2 years ago

“The Second Amendment’s core is the right to keep weapons for defending oneself and one’s family in one’s home.”

Then why the heck does it say “keep AND BEAR?!?!?!!?!”

This is exactly how our rights are incrementally erased. One agreement on false basics at a time.

Joe
Joe
2 years ago
Reply to  KuhnKat

Should the 19th Amendment end when a woman leaves the house? These judges are insane (or maybe they should apply their logic uniformly).

Logan
Logan
2 years ago
Reply to  KuhnKat

An argument made in Congress against adding the second amendment was that government has no authority whatsoever to regulate firearms. In fact, all of the powers of the congress to pass laws are strictly written in the constitution, all other things beong left to the states or the people. The counter argument was literally that politicians would ignore that and pass whatever they wanted. They do exactly that. You may have heard of the “general welfare” clause. In the constitution, a part of the opening or “preamble” states that one of the purposes of the government passing laws is for… Read more »

Kevin Mason
Kevin Mason
2 years ago

My father always said ( when guns are outlawed, only outlaws will have guns)

Felix Martinez
Felix Martinez
2 years ago

Ok so let’s revoke this judge’s their right to protection on the court room or any other place besides their homes and you will see how quik the change their thinking about the second amendment,its shameful the same people that sworn to protect the constitution are the first one’s trying to abolish it,a bunch of traitors

Wild Bill
Wild Bill
2 years ago
Reply to  Felix Martinez

@Felix Martinez, We have to go back to the concept that a Right is a shield that one can not be touched; that a Right is permanent, a Right estops all governmental power; and preempts all future Congressional, bureaucratic, and judicial actions. That is the way Rights were intended to be by the founders. Elitists from W. Wilson, O.W. Holmes, Jr. and FDR to the present day’s elitists have diminished the concept of what a Right is by and through the legal fallacy of balancing governmental powers and authorities over the Rights of individuals. Governments claim to have an interest… Read more »

Ted Baker
Ted Baker
2 years ago

Don’t be so sure Judge Bibas’ dussenty is all that it’s cracked up to be. Sure, strict scrutiny, on the record in this case, should show that a magazine capacity limit is unconstitutional. But even the dissent appears to limit the exercise of one’s 2A rights to the home. Specifically,

“The Second Amendment’s core is the right to keep weapons for defending oneself and one’s family in one’s home.”

Where does that leave us on open or concealed carry?

Art Weaver
Art Weaver
2 years ago
Reply to  Ted Baker

The jurists are specifically making inferences the right being limited to the home so that carry outside the home becomes a privilege. And, as such, regulatable by the government. It’s precisely what they did with travel by automobile. The right to travel was subsumed by the governments desire to control the use of automobiles. Because if driving was a right, not a privilege, we would have utter chaos on our roads and streets. Travel by horse or on foot is still a Constitutionally guaranteed right! You papers and property have the full protection of the law. In a car, not… Read more »

Dustin Yetman
Dustin Yetman
2 years ago
Reply to  Art Weaver

Thank you for this, spot on.

Butch
Butch
2 years ago
Reply to  Ted Baker

Ted, WRONG.. “The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” – Thomas Jefferson ……………… “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” – Benjamin Franklin …………… .”Before a standing army can rule, the people must… Read more »

grizzman1
grizzman1
2 years ago
Reply to  Ted Baker

What don’t you understand about “KEEP & BEAR ARMS!
A milk-sop you are! Look it up in the dictionary if your Socialistic DemoTARD Leftist Pink Commie EdumaKation taught you how do this!

Anthony V Ambrose
Anthony V Ambrose
2 years ago

The 2nd. Amendment was created to preserve the rights of the people from the potential tyranny of a despot. This Amendment, like the other amendments, is designed to prevent the Federal government from using its considerable resources to control the people. Their reasoning , that this is a privilege and not a right is a direct attempt to do what the framers of the constitution wanted to prevent.

Micheal Clas
Micheal Clas
2 years ago

Read the US constitution article 1 section 8.

Jeff
Jeff
2 years ago

Any argument I hear about defending the 2nd amendment always falls short like this one. Something that has potential deadly force should have some regulation to it. Do you seriously believe that it is good for our society to have free access to firearms? We dont allow people to have free access to any medication they want. They have to have a prescription from someone that knows what they are doing. That is the analogy you should use.

Vanns40
Vanns40
2 years ago
Reply to  Jeff

Without having to go any further than this simple statement your argument fails completely: Access to medication is not a “Right” guaranteed to us by our creator and reaffirmed by our Constitution, the “Right” to arms is.

Care to reasses your position? Any people denied the Right to arms inevitably become slaves to a government that has arms. The world is replete with their mass graves.

John Dunlap
John Dunlap
2 years ago
Reply to  Jeff

Your analogy is darkly hilarious, given that we are in the midst of a doctor induced opiate addiction epidemic. We do not license or regulate the purchase of gasoline, one of the world’s most powerful non-nuclear explosives. Likewise, there are no restrictions on purchasing all sorts of materials from your local pool supply and hardware store, which can be used to improvise a variety of chemical weapons and explosives. If Americans were so irresponsible and potentially violent as to warrant restricting our access to firearms as you have suggested and as has been done in many of the states which… Read more »

D. Alighieri
D. Alighieri
2 years ago
Reply to  John Dunlap

D, You are correct and your response to Jeffy is flawless. Here is another hypothetical: yard and garden chemicals. There is no restriction on buying yard and garden chemicals. If Americans were the untrustworthy killers that Jeff presupposes, then they could put enough yard and garden chemicals in the water supply of the forty major socialist cities, in an afternoon to, diminish the marxist socialist voting population to near zero, the next day.

John Dunlap
John Dunlap
2 years ago
Reply to  D. Alighieri

Thanks. It occurs to me that many on the Left have been demonstrating that they ARE the kind of people Jeff there believes us all to be. Maybe it’s a good time to get a good system and start filtering all you water…

Art Weaver
Art Weaver
2 years ago
Reply to  Jeff

WRONG.
Use of medications is both fundamentally problematic and decidedly not a Constitutional right!

Use, ownership, and bearing of firearms IS a Constitutional right. One proven not to be problematic in any form of way.
Six hundred million firearms and three trillion rounds of ammo legally in the hands of Citizens with virtually zero problems caused by that possession proves this!

Logan
Logan
2 years ago
Reply to  Jeff

The founders used drugs and alcohol. They believed that government has no business or authority in regulating it. In fact, americans used to undwrstand this so well that alcohol prohibition was passed as an amendment becauee it is otherwise unconstitutional. Regulated drugs and firearms is unconstitutional. The constitution only allows passing laws to regulate things specifically written in the constitution and nothing else. The 9th amendment specifically states that no written right or lack thereof should be construed to deny another right. In other words, it doesnt have to be in the constitution to be a right. You have a… Read more »

Douglas Kuykendall
Douglas Kuykendall
2 years ago
Reply to  Jeff

It is evident that the fore fathers thought it is that important to be number two.That’s right after the first one.That’s the one that gives you the right to run your jaws acting like the pure left wing liberal communist that you are. You don’t pick an choose which one you like and don’t like. It has served this country almost 250 years against morons like you.If you want to be a socialist go to France,or Venezuela. They might take you.The difference between me and you, I would fight for the whole constitution unlike you just keep what you like… Read more »

KuhnKat
KuhnKat
2 years ago
Reply to  Jeff

Virtually anything can be used to harm others. Should we allow the gubmint to regulate EVERYTHING based on this strawman??

Since you apparently don’t see past the GUN, let me help. The US is nowhere near the top of the HOMICIDE per population figures. Countries with few guns and much regulation murder people at high rates. It is not the GUN, it is the lack of the ability of people to protect themselves due to regulation and culture.

Joe
Joe
2 years ago

Funny not funny…. I don’t recall reading anywhere in the Bill of Rights or really anywhere in the Constitution that my rights were only valid in my home! What kind of non-sensical garbage is this??? So the first amendment can only be used at home and the fourth… buddy watch out… the minute you leave the house…. it’s go time! What kind of madness have we allowed to rule over us?

Ann
Ann
2 years ago
Reply to  Joe

Joe, you couldn’t find it because the words “in the home” DOES NOT EXIST!!

Justista
Justista
2 years ago

The 3rd circuit is exactly why the Second amendment exist. To keep the likes of them in check when all else fails.

DCALDWELL
DCALDWELL
2 years ago
Reply to  Justista

“The beauty of the Second Amendment is that it will not be necessary until they try to take it.” -THOMAS JEFFERSON

Christopher Pitts
Christopher Pitts
2 years ago

This is a great legal discussion on the topic. It really sticks to facts, and informs people about how the law works. The best thing about this article is that it makes an argument based on objective standards that we all understand and can honor, at least in principle, even to those who undervalue 2A. These are the kinds of arguments we should be making to our fellow citizens on the left. The rights they value can be eroded and destroyed using the same manipulations of jurisprudence if they allow 2A to be gutted this way. Even if you favor… Read more »

Edward Martinez
Edward Martinez
2 years ago

We can argue this until the cows come home, these judges are bias and liberals who are filling their pockets they are profiteers of self gain, and after all is said and done their words will not be worth the paper it is written on, to put it in true context remove the guns and we will experience a higher rate of murders, and groups to overthrow government, more and more lawlessness will rule our everyday lives. Learned men of the world know nothing as it they can never solve world issues at hand. A natiin without protection from its… Read more »

goatmoag
goatmoag
2 years ago

“We can argue this until the cows come home, these judges are bias and liberals (befitting a free man) who are filling their pockets they are profiteers of self gain…”
Liberal \Lib”er*al\ (l[i^]b”[~e]r*al), a. [F. lib[‘e]ral, L.
liberalis, from liber free; perh. akin to libet, lubet, it
pleases, E. lief. Cf. {Deliver}.]
1. Free by birth; hence, *befitting a freeman* or gentleman;
refined; noble; independent; free; not servile or mean;
Webster’s Revised Unabridged Dictionary (1913)

Viscount
Viscount
2 years ago

The 2nd Amendment only protects keeping and bearing arms. There is no Constitutional protection for shooting the gun and the criminal and civil laws apply. In the strict scrutiny example, the better analogy would be bringing a firearm to a courthouse or government building.

Tionico
Tionico
2 years ago
Reply to  Viscount

What is a gun designed to DO? If you are correct, by your “reasoning” I would be able to OWN a car, but cannot DRIVE it anywhere off MY property. Then WJY would I own one? To haul the firewood 300 feet from the woodshed to the house? You demonstrate about as much sense as the majority “judges” in this case. WHY would the Founders name the right to arms, in the context of the local militia (ALL able bodied capable of bearing arms) then think we’d not fire them? What of Lexington, and later that same day, Condord? Were… Read more »

Anonymous 3523
Anonymous 3523
2 years ago
Reply to  Tionico

If you don’t register your car and get a license you can’t drive your car off your property. Now, why is it unreasonable to demand stricter laws in place to be able to carry out in public?

Patrick Hazell
Patrick Hazell
2 years ago
Reply to  Anonymous 3523

I know that in Iowa the concept of registering or licensing a car has been tested and determined that the government had no right to require citizens to license their cars and or for the citizen to even have to carry a driver’s license. These state requirements are all fiction that have been propagandize into the population through fines and incarceration. But, if citizens took the time to take these issues to court, they might realize that it is not necessary to license cars or themselves as drivers

KuhnKat
KuhnKat
2 years ago
Reply to  Anonymous 3523

It isn’t a matter of whether it is reasonable or not. The Amendment clearly states that our right will not be infringed. If you do not like it then you should be working with others to remove or amend the 2nd amendment. Before you do that, consider how perverse much of the Judicial decisions have already been in the face of such clear language. The gubmint tends to authoritarian where it grants and limits the power of the people whether we like it or not. Removing the last few blocks against that authoritarian impulse will move us from free back… Read more »

William Dee
William Dee
2 years ago
Reply to  Tionico

But how do you judge who has good intent and who has bad intent? Some of the best liars are psychopaths. The problem is we can’t tell what someone’s intentions are before they get the gun.
Part of the way to protect society (the Individuals of that society) from being shot by reckless or evil people is to restrict who gets a gun or what guns are available.

KuhnKat
KuhnKat
2 years ago
Reply to  William Dee

You admit that we are unable to determine who should and should not have a gun and then claim that restricting those who obey the law is a good thing.

Those who do not obey the law should not have a gun. Passing laws restricting those who obey the law has little affect on those who do not. Seriously, why can’t y’all understand how useless it is to pass gun regulations??

Y’all pass the laws and the criminals keep on killing especially since the honest people no longer have an efficient tool to protect themselves.

Recomdo
Recomdo
2 years ago

Yes, to be unarmed at this point would prove what many of us from the 50’s & 60’s have always known…………POLITICIANS LOVE UNARMED PEASANTS!
Think about it.

Ed Bonderenka
Ed Bonderenka
2 years ago

What the heck is a “less than fundamental right”?
And how does anything get less fundamental than the Bill of Rights?

Kurt
Kurt
2 years ago

As someone in a state (CT) who has his 2nd amendment rights trampled, I grow tired of this nonsense. I can’t even buy ammo in my state without a permit. If caught with my multiple AR15’s in state I’m going to prison. It’s become beyond absurd and I wish to opt out of these liberal laws.

goatmoag
goatmoag
2 years ago
Reply to  Kurt

“It’s become beyond absurd and I wish to opt out of these liberal (befitting a free man) laws.”

Liberal \Lib”er*al\ (l[i^]b”[~e]r*al), a. [F. lib[‘e]ral, L.
liberalis, from liber free; perh. akin to libet, lubet, it
pleases, E. lief. Cf. {Deliver}.]
1. Free by birth; hence, *befitting a freeman* or gentleman;
refined; noble; independent; free; not servile or mean;
Webster’s Revised Unabridged Dictionary (1913)

Harold Greenleaf
Harold Greenleaf
2 years ago

The judge states “The Second Amendment’s core is the right to keep weapons for defending oneself and one’s family in one’s home.” Where in the Second Amendment does it state “in one’s home”? If you go by this then the judge is putting more restriction on the Second Amendment than the rest of the court.

Richard Christensen
Richard Christensen
2 years ago

Since when does our government, a Republic, of the people, for the people, by the people, assume authority to grant “priviledges”on any issue, especially Constirurional rights. These far lefties and libtards have gone too far with their sick delusional mentality. We are in a dangerous state in this country with these indoctrinated, brain washed, socialist leaning nut jobs. Time to play Cowboys and libtards. I see bad things coming to the streets if this idiocy doesn’t cease. History folks. The first action in losing freedoms fought for and died for is ” government” infringements on rights, and gun confiscation. Fact.… Read more »

Joe
Joe
2 years ago

Hopefully the Supreme Court will grant a Writ of Certiorari after Trump nominates a Ginsburg replacement.

Ted Baker
Ted Baker
2 years ago
Reply to  Joe

It only takes 4 votes to grant Cert. If they won’t grant with the 5 conservative justices, they’ve got, Ginsburg isn’t the problem.

n.r.ringlee
n.r.ringlee
2 years ago

Suggested edit: “reserved for fundamental Constitutional rights.” change to “reserved for enumerated natural rights.” Otherwise this is absolutely spot on. A very few understand the logical tests used when balancing individual rights against government power. This article clarifies the issue. Progressives do not believe in the concept of natural law nor do they believe in individual liberty. They are inherently collectivists and would really prefer to treat “the masses” meaning you and me as a mob in need of control. That is why they can cast aside the complaints of the Declaration and the specifics of the Bill of Rights.… Read more »

Gary Bridgman
Gary Bridgman
2 years ago

God,guts,& guns are what made America great.The Liberals would have us believe that none of them are necessary. They are wrong!

goatmoag
goatmoag
2 years ago
Reply to  Gary Bridgman

“The Liberals (befitting a free man) would have us believe that none of them are necessary.”

Liberal \Lib”er*al\ (l[i^]b”[~e]r*al), a. [F. lib[‘e]ral, L.
liberalis, from liber free; perh. akin to libet, lubet, it
pleases, E. lief. Cf. {Deliver}.]
1. Free by birth; hence, *befitting a freeman* or gentleman;
refined; noble; independent; free; not servile or mean;
Webster’s Revised Unabridged Dictionary (1913)

Tom Arnold
Tom Arnold
2 years ago

You never say what law is being challenged our how it may infringe the right to bear arms. Sort of a bit omission. Also, who are the two judges in the majority, and what are their judicial pedigrees?

Bob
Bob
2 years ago

So am I getting this right, the RIGHTS are going after the 2nd amendment. I have always believed they are the ones that will actually diminish the 2nd amendment. It goes with their elitists additude that they should be in charge over the masses .e.i. the masses can not be armed..

James Marhevka
James Marhevka
2 years ago

The bottom line is that the Supreme Court better step up and take these cases on, no more shying away from standing up for OUR CONSTITUTION. States like NJ, CT, MA and the New England Corridor along with CA need to be reminded that OUR CONSTITUTION is a living and breathing document. People also better understand that the Government can and will take this stand with ANY ammendment they feel goes against their ability to dictate and become an authoritarian power. OUR second amendment is a right that was put into OUR CONSTITUTION for the very reasons were seeing now,… Read more »

goatmoag
goatmoag
2 years ago
Reply to  James Marhevka

“Our country is being run by liberal (befitting a free man) courts and its time that WE THE PEOPLE stand up and say NO”

Liberal \Lib”er*al\ (l[i^]b”[~e]r*al), a. [F. lib[‘e]ral, L.
liberalis, from liber free; perh. akin to libet, lubet, it
pleases, E. lief. Cf. {Deliver}.]
1. Free by birth; hence, *befitting a freeman* or gentleman;
refined; noble; independent; free; not servile or mean;
Webster’s Revised Unabridged Dictionary (1913)

Malcolm Bruce Stroh
Malcolm Bruce Stroh
2 years ago

If it was included in our Charter of Freedom (the combination of the Constitution, the Declaration of Independence and the Bill of Rights) and listed as a Right — then, it is a RIGHT and NOT a “suggestion!”
The two second-rate commie 3rd Circuit “judges” (I use the term loosely) can kiss my lily-white ass right on the wet brown spot…

ROGER KATZ
ROGER KATZ
2 years ago

Dean, I took a perfunctory look at the case. The point you allude to accurately addresses the concern that the majority of the high Court expressed in Heller. Justice Scalia, writing for the majority, made very clear that, where a Governmental regulation impacts the core of the Second Amendment, no judge-made standard of review is to be utilized, as utilization of any of them would likely to lead to the conclusion that invariably is reached, namely that the Governmental regulation is found to be Constitutional. And, this is precisely what we see here in this Third Circuit case. These judge-made… Read more »

JDC
JDC
2 years ago
Reply to  ROGER KATZ

Superbly written article by Dean, and also a great analysis, Roger! Thanks to you both!

Richard Lewis Kemp
Richard Lewis Kemp
2 years ago

, the right of the people to keep and bear arms shall not be infringed.

Luigi Spaqi
Luigi Spaqi
2 years ago

The 2nd Amendment was put in place that no U.S. government or military, militia…, should ever be more armed or more equipped or outnumber it’s armed citizens; Should a rogue tyrannical government take over, it’s Citizens will always have the power to oranize and assemble together in order to overthrow it… Those judges who are trying to oppose and change the meaning of the 2nd Amendment Bill Of Rights should be tried for treason!!!

Joe Giordano
Joe Giordano
2 years ago
Reply to  Luigi Spaqi

It’s also the reason Japan did not invade the mainland of the United States in WWII. They knew there would be guns pointed at them from every blade of grass.

Richard Lewis Kemp
Richard Lewis Kemp
2 years ago

This is perjury in violating their oaths of office Wich is treason and a felony, the third circuit has ward against their oaths and the Constitution of the United States of America,their ruling and jurisdiction is null and void they are tresspassers of their offices, they are also guilty under article 18 u.s.c section 241 conspiracy against rights and article 18 u.s.c 242 deprivation of rights under color of law. “Us supreme Court” “The general rule is that an unconditional statute,though having the form and name of law,is in reality no law,but is wholly void and ineffective for any purpose,since… Read more »

John
John
2 years ago

Excellent news!

Brian Lewis
Brian Lewis
2 years ago

How is it I can always tell a Dean Weingarten article without noticing his name till the end of the article?

Well thought out, well sequenced, always supremely relevant to our 2A rights, shouts “look at this liberal hypocrisy” at the top of his lungs and frustrates the hell out of me that this country is turning into something unrecognizable.

Brilliant work, just brilliant!

Jason Nichols
Jason Nichols
2 years ago

I disagree with this judge. The core of the right to bear arms has little to nothing to do with the right to defend your home. It has little to do with self defense. These are ancillary. The federalist papers link the second amendment to the section of the Declaration of Independence that says if a government becomes too oppressive or despotic, it is the duty of the people to rise up and overthrow that government. The second is included to ensure that the other amendments in the bill of rights are not infringed upon. It is there so that… Read more »

txfella
txfella
2 years ago

I’ll make this clear for the 3rd circuit and any other interested party; The second amendment states that my very freedom depends on MY being well armed, and that MY government shall not infringe on that right in any way. Any and all “gun laws” are unconstitutional and violate my civil rights.

Michael broadhead
Michael broadhead
2 years ago
Reply to  txfella

Amen brother The government is trying to weaken us next is communism

Well armed
Well armed
2 years ago

This is a Republic yet the government uses guns to enforce a democracy. Look it up. A democracy is wheen two wolves and one sheep vote on what to have for dinner. A republic is when the wolves don’t get to vote and the sheep are well armed.

Judge Holden
Judge Holden
2 years ago
Reply to  txfella

Wrong. Rights which offend the second amendment right but when serve a compelling state interest and are narrowly tailored to that state interest do not violate the constitution. Even under the dissenting opinion.

Art Weaver
Art Weaver
2 years ago
Reply to  Judge Holden

Wrong.
When the Constitutional right specifically says, “shall not be infringed,” the founders intent is made clear that no “offense,” or government interest of any kind has bearing upon that right.
There is no room for interpretation here.
In fact the very idea of such limitations, interest balancing, or “serving governmental convenience,” as models for Constitutional consideration are both absurd and illegal!
These legal mechanisations are in fact an abomination to the basis of freedom from government excess and tyranny intended by the Constitution and it’s framers!

Wild Bill
Wild Bill
2 years ago
Reply to  Judge Holden

@Judge Holden, If one believes that an individual and his Rights are inferior to the state, then that theory diminishes a Right to a privilege and eventually … nothing at all. If, however, one believes that the state is a creature created by individuals, then the individual and his Constitutionally enumerated Rights are superior, and those Rights are a shield behind which one can take refuge and not be touched by the state. Now it is time to prove that you really are a judge and not a mere propagandist. Has the creature, known as the state, created by individuals,… Read more »

Tionico
Tionico
2 years ago
Reply to  Judge Holden

the only “cmpelling state interest” according to the Constitution is the unflagging protction of our rights, both those enumerated and those not. Any government attempting to curtail or limint those rights given us by the same God who made us is a corrupt government, and deserves being tossed aside on the dustheap of history. England refused to protect our natural rights, indeed, even specifically sought to remove them. Read the Declaration of Independence for details. And look what the exercise of our natural rights did to England. Now, look across the Puddle and see how England’s abrogation and denial of… Read more »

Greg K
Greg K
2 years ago
Reply to  Judge Holden

Absolutely and perversely false. The Constitution is a “Compact of the Several States” for which the States are signatory to be a part of. Additionally, the “Supremacy Clause” supports this very notion. It’s iron clad…Article VI, Clause 2.

For your purposes, you should pay special attention to that “Judges in every State shall be bound thereby,” portion.

Dave
Dave
2 years ago
Reply to  txfella

A mere glance through history reveals the devastation of a country when its government removes the rights of its people to bare arms. This is not opinion, it’s a Liberal’s nightmare, the facts.

Recomdo
Recomdo
2 years ago
Reply to  txfella

Yes, to be unarmed at this point would prove what many of us from the 50’s & 60’s have always known…………POLITICIANS LOVE UNARMED PEASANTS!
Think about it.

txfella
txfella
2 years ago

I’ll make this clear for the 3rd circuit, and any other interested party; I do not require their or anyone else’s interpretation, definition, or classification of the second amendment. The second amendment states that my very freedom depends on MY being well armed, and that MY government shall not infringe on that right in any way. Any and all “gun laws” are unconstitutional and violate my civil rights.