New York Case Exposes Biden’s Anti-Second Amendment Bias

Biden and Garland IMG NRA-ILA
Further evidence of Joe Biden and Attorney General Merrick Garland’s contempt for the Second Amendment has emerged in recent weeks. IMG NRA-ILA

U.S.A. -(AmmoLand.com)- Further evidence of Joe Biden and Attorney General Merrick Garland’s contempt for the Second Amendment has emerged in recent weeks.

On September 21, the solicitor general of the U.S. (an office of the Department of Justice that reports to the Attorney General) filed a brief on behalf of the federal government supporting New York’s may-issue carry licensing regime in the U.S. Supreme Court case New York State Rifle & Pistol Association v. Bruen. That same day, the solicitor general filed for leave to participate in oral arguments. The court granted this leave on October 12. Therefore, on November 3, the American public will be treated to a verbal presentation of the Biden administration’s disdain for the Second Amendment and the right to self-defense outside the home.

New York’s may-issue carry licensing scheme requires applicants to demonstrate that “proper cause exists for the issuance” of a license, in addition to the standardized requirements attendant most carry permitting regimes (certification in firearm safety training, no serious criminal record, etc.). This structure grants unfettered discretion to government officials to determine who may bear a firearm outside the home for self-defense. In many parts of New York, the “proper cause” regime is used to effectively bar law-abiding individuals from exercising their rights.

According to the Biden administration, New York’s discretionary approach to administering a Constitutional right “does not violate the Second Amendment.”

Rejecting the Court’s ruling in District of Columbia v. Heller (2008), the Biden administration’s brief noted, “A court should uphold an arms regulation if it is validated by text, history, and tradition or if it satisfies intermediate scrutiny.” Of course, the Heller decision did not contemplate a tiered-scrutiny analysis for Second Amendment cases.

Under tiered-scrutiny analysis, a government regulation that impacts a right is examined under one of three rubrics. The severity of the test depends on which right is impacted. Under the lowest tier, rational basis review, the government only needs to prove that the regulation has some rational connection to furthering a government interest. Intermediate scrutiny requires the government to show that a regulation furthers an important government interest in a manner related to that interest. Strict scrutiny requires a regulation to be narrowly tailored to achieve a compelling state interest.

The subjective nature of this mode of analysis enables judges to come to decisions that align with their preferred policy preferences rather than the law. This may be why Justice Antonin Scalia eschewed such an approach in Heller.

Moreover, in arguing that restrictions on the Second Amendment right should only face intermediate scrutiny, the Biden administration is making clear that it views the right to keep and bear arms as a second-class right. Under a tiered-scrutiny approach, regulations that implicate fundamental rights are reviewed with strict scrutiny.

Of course, the Biden administration’s entire argument should be irrelevant in light of Heller. As NYSRPA’s reply explained,

Heller held that the Second Amendment protects “the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592. And it explained that the term “bear,” as used in the text, means to “wear” or to “carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.”

In an interesting note, the Biden administration cited federal laws of dubious legitimacy in arguing to uphold New York’s law. The brief stated,

Federal law illustrates the types of regulations that legislatures may constitutionally adopt. Congress has disarmed felons and others who may be dangerous or irresponsible. It has forbidden the carrying of arms in sensitive places, such as courthouses and school zones. And it has extensively regulated commerce in arms. All those regulations pass constitutional muster.

First, whether or not extinguishing the Second Amendment rights of nonviolent felons, particularly given the modern ever-expanding categories of nonviolent felonies, is permissible government action is the topic of significant legal debate.

Second, the federal government’s purported authority to ban firearms in school zones is suspect at best. Those older than the clerks in the solicitor general’s office might recall the U.S. Supreme Court case U.S. v. Lopez (1995). In it, the federal government claimed that Article I’s oft-abused Commerce Clause empowered the federal government to legislate to ban guns around all of the nation’s schools under the guise that it is somehow related to commerce. The Court didn’t buy that nonsense, striking down the federal overreach.

The school zones language was later reenacted with a tacked-on reference to firearms that had traveled in interstate commerce. Assuming this Court would fall for Congress’s lame attempt to circumvent the Lopez ruling seems presumptuous.

The Biden administration’s characterization of the Second Amendment right as a second-class right should come as no surprise, as there is significant evidence Biden doesn’t accept that the amendment protects an individual right to keep and bear arms at all.

During a September 2019 “town hall” hosted by New Hampshire ABC affiliate WMUR, then-candidate Biden made clear that he does not believe the Second Amendment protects an individual right to keep and bear arms and that the U.S. Supreme Court decision in Heller was incorrect.

During the event, Biden was asked, “Do you agree with the D.C. v. Heller decision in regards to protecting the individual right to bear arms that are in common use and which are utilized for lawful purposes?”

Biden responded in part, “If I were on the court I wouldn’t have made the same ruling. OK, that’s number one.”

Later, the noted resume padder and law school plagiarist boasted,

And I taught for years Constitutional law and separation of powers, I taught the Second Amendment. And the Second Amendment is not absolute. And we can argue, the fundamental argument is well-regulated militia and all those things, I won’t get into that. I think that the fundamental argument is the reason that was given as a right because we needed to be able to muster people to deal with an enemy called Great Britain we were fighting in a war.

The Biden administration’s actions in the NYSRPA case have also vindicated NRA-ILA’s opposition to Garland’s 2016 nomination to the U.S. Supreme Court. At that time, NRA-ILA explained, “a basic analysis of Merrick Garland’s judicial record shows that he does not respect our fundamental, individual right to keep and bear arms for self-defense.” Labeled by partisan forces as a “smear” campaign, NRA-ILA’s considered analysis proved prescient.

NRA members and other gun rights supporters are encouraged to learn more about what the Biden administration thinks of their Second Amendment rights by tuning into the oral arguments in the NRA-supported NYSRPA case on the U.S. Supreme Court’s website on November 3.


About NRA-ILA:

Established in 1975, the Institute for Legislative Action (ILA) is the “lobbying” arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess, and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution. Visit: www.nra.org

National Rifle Association Institute For Legislative Action (NRA-ILA)

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Laddyboy
Laddyboy(@laddyboy)
1 month ago

My comment: WELCOME to Maryland!!! The three rules the Maryland State Police and the Politicians ELIMINATE 99% of Legal Law Abiding American Citizens, who LIVE in Maryland, from obtaining a PERMISSION SLIP to EXERCISE a Constitutionally Recognized RIGHT!!!!!!!!!!!!!!!!

Bill
Bill(@bill1776)
1 month ago

Good article, but it seems odd to say at this late date that Biden’s anti-gun bias has been exposed (like, maybe, for years, now?).

Montana454Casull
Montana454Casull(@rld454c)
1 month ago

New York is a blue shithole of crime and that alone is reason enough to get a permit and carry a gun . These idiot politicians failed policies create the reason we need to arm up and carry a firearm . The dumb s don’t get it .

Arizona
Arizona(@arizona)
1 month ago

NY’s law is crap. Any system requiring permits, licenses, foid cards, or the like is the equivalent of a poll tax, and thus repugnant to the Constitution and without any legal authority. All gun laws are unconstitutional infringements.

Deplorable Bill
Deplorable Bill(@deplorable-bill)
1 month ago

They are treasonous, they are tyrannical, they are corrupt and they have said they are coming for our firearms. They have already made ammo so expensive that it’s unaffordable. To think they are not coming for our firearms is death. Hopefully you are ready. Today, I was told the next 3 weeks will be historic. They say history repeats itself and I believe it’s true. We have seen decades of tyranny and we have humbly protested it. The answer they gave is more tyranny along with torment. Sounds a bit like the spring of 1775 dosent it. I would expect… Read more »

Ansel Hazen
Ansel Hazen(@ansel-hazen)
1 month ago

Arm up and carry on”

And save ya brass, yer gonna need it.”

James_Madison.png
Deplorable Bill
Deplorable Bill(@deplorable-bill)
1 month ago
Reply to  Ansel Hazen

Yup, absolute power corrupts absolutely. That is the nature of mankind. You bet, save your brass. Primers are scarce as well. Jacketed bullets are more than double what they cost just a year and a half ago. Powder is 4x as much. Those companies who are scalping their customers will be remembered. Pistol and low velocity rifle bullets can be cast. I would not recommend running them through a gas impingement system but they would work in a pinch. See M.P. molds, Lee, RCBS and Lyman molds as well. That was in order of least to most expensive. Arm up… Read more »

Arizona
Arizona(@arizona)
1 month ago

We have been in a cold revolutionary war since Obama’s reign of errors. It will go hot within the next 3 years.

DDS
DDS(@dds)
1 month ago

Upon further review….. (don’t you love it when one of “the zebras” says that?) Sleepy Creepy Joe said… “I think that the fundamental argument is the reason that was given as a right because we needed to be able to muster people to deal with an enemy called Great Britain we were fighting in a war.” Let’s see. The Revolutionary war lasted from 1775 until 1783. The Constitution and Bill of Rights were ratified in 1789, six years after that war ended. The United States was again at war with Great Britain from 1812 until 1814. So the Second Amendment… Read more »

Wild Bill
Wild Bill(@wild-bill)
1 month ago
Reply to  DDS

Well stated.

Bill
Bill(@bill1776)
1 month ago
Reply to  DDS

Too bad the intent of keeping our government in its rightful role has failed so badly.

DDS
DDS(@dds)
1 month ago

“All those regulations pass constitutional muster.” Unfortunately, that’s not how the system works. SCOTUS cannot pronounce a bill moving through Congress as unconstitutional. Similarly, they cannot declare a bill just signed into law by the President as unconstitutional. They can’t even rule on all of the thousands of cases that reach them through the petitioning process. Only when a case that a sufficient number of justices agree needs to be seriously considered percolates up through the levels of the Federal Judiciary does SCOTUS get to rule a law unconstitutional. Some of the myriad regulations that the administration’s brief referred to… Read more »

swmft
swmft(@swmft)
1 month ago
Reply to  DDS

would be fun to see scotus , in their statement declare a number of the stated laws unconstitutional in the ruling. thump the government on the head

Bill
Bill(@bill1776)
1 month ago
Reply to  DDS

Turning people into victims occurs with no delay. Finding justice can take years and be financially ruinous. This it the true quality of “justice” in America, vary sad to say. “… with liberty and justice for all.” It is still a nice hope, although corruption spreads a lot faster than virtue, these days and probably always.