Sessions and the CourtsSteven Lieberman
Sessions and the Courts
This week I am in Vegas at our annual SHOT show (Shooting Hunting Outdoor Trade) show. Yes… as you would expect I am going through sensory overload right now… but do not fret readers… I will give you a full debrief next week when I get back.
In the meantime, I do want to talk about some forward looking political prognostications:
Jeff Sessions and the ATF
So, last week the Senate held confirmation hearings on Jeff Sessions as our new Attorney General. There were really no surprises here, nor was their an inordinate amount of time spent on the Second Amendment. There was however a specific mention by Sessions that the Second protects an individual right to the keeping and bearing of arms.
This is an important, if not unexpected departure from the Obama administrations hostility toward firearms ownership and use. He also stated that the the individual right that is protected by the Second is a “Fundamental Right”.
This is important.
(If you have arrived here from our newsletter, continue reading here:)
As a fundamental right (as articulated by Justice Scalia) the appropriate test do determine whether a statute implicates the Second Amendment (made applicable to the States via the Fourteenth Amendment) would be what is referred to as a Strict Scrutiny Analysis.
Their must be a “Compelling State Interest” and their must be no “Less Restrictive Alternatives”
As a general rule, the vast majority of statutes, be it in reference to Free Speech, Religion, Equal Protection, etc. fail a Strict Scrutiny analysis. This is usually because there are virtually always “less restrictive alternatives.”
The anti-gun circuit courts decided that rather than following the approach articulated by the Supremes they were going to “push back” and create their own two part test… one that has been defined as an “Intermediate level of scrutiny”.
In the first part they claim that they must see if the law implicates the Second Amendment in the first place (United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013))
Typically, anti gun courts claim that virtually nothing effects the Second Amendment except an out and out ban of all firearms.
Beyond that they have used tortured logic to claim that the single largest selling firearm in the United States, the AR-15… a rifle that is used specifically in competitions throughout the country… is not in “common use” and therefore not covered by the Second.
Assuming that they are not able to twist their intellectual gymnastics to the point that they cannot legitimately claim the Second has not been implicated, they now look to see… well… I’ll let the 9th Circuit speak for itself:
If the regulation is subject to Second Amendment protection (i.e., the regulation is neither outside the historical scope of the Second Amendment, nor presumptively lawful), the court then proceeds to the second step of the inquiry to determine the appropriate level of scrutiny to apply. Jackson, 746 F.3d at 960. In ascertaining the proper level of scrutiny, the court must consider: (1) how close the challenged law comes to the core of the Second Amendment right, and (2) the severity of the law’s burden on that right. Id. at 960–61.
Yeah… you read that right… they claim that it is a friggen sliding scale!!!
Imagine if all of our rights protected by the Constitution fell to this “sliding scale” analysis.
Sessions in his hearings essentially discounted this entire scheme. This is an important change not only for the direction of the Attorney General, but also sets a tone that the administration is antagonistic towards jurists that are interested reducing fundamental rights to match the political objectives of any particular administration.
On an unrelated note… potentially… the other day a bill was introduced in Congress to formally disband the ATF. The mission of the ATF would be split up between the FBI and the FDA.
Things are indeed getting interesting in Washington!