Bob Owens points out that the Supreme Court’s decision in Overgefell v. Hodges enables national carry. I wouldn’t go toting a gun over into New Jersey or Maryland just yet. The argument used here will certainly be useful when defending National Reciprocity in court, or arguing a right to carry a firearm before the federal courts, but given how hostile and resistant lower courts have been, and given the Supreme Court’s reluctance to do anything about it, I wouldn’t want to find myself on trial arguing that some language in Overgefell supports a national right to carry. The courts aren’t likely to agree, and the Supreme Court not likely to care. Some rights are more equal than others, folks. That’s just the way it is, for now.
Implications of Same Sex Marriage Ruling on Guns Rights
This is a defensive decision for gun rights, not an offensive one.
What I wrote on Miguel’s blog on this issue:
No.
The issues are quite different and the use of the 14th for SSM does not implicate the 14th for national carry.
Everyone has “choices” on guns and marriage, but government has “power” – the power to regulate. The question in SSM was whether the government’s use of that power was unconstitutionally denying people their choice to do something that does not harm another person.
“Harm” was alleged by those who opposed SMM and frankly it didn’t hold court. The court is clear that the sanctity of your marriage is not harmed when two married dudes next door argue over who does the dishes tonight. So in that case, the government overstepped because without a harmful act to stop, the law was simply unconstitutional under 14A.
In the case of carry though, the government (in some places) alleges “harm” when people carry. Very clearly they make arguments for public safety and against blood in the streets – and it works with some judges. That “harm” ameliorates your 14th Amendment claim (which is a staple of nearly every single challenge we make, BTW) because the government has an interest in stopping such harm. This is why they win.
So the SSM decision does nothing for gun rights because the issue has already been argued and has failed (where it has failed, at least). The courts who don’t like gun rights have said quite plainly that your “choice” to carry does not overcome the safety of society, at large.
So…Gay marriage does not harm society, but public carry does. That’s why one is protected and the other regulated into non-existence.
“Everyone has “choices†on guns and marriage, but government has “power†– the power to regulate.”
I’m not convinced that this supports your argument. At issue is not “regulation” as it is commonly understood today; the issue is the utter failure of certain states to establish objective standards for licensing people to carry firearms.
How is it consistent with the 14th Amendment that some states only recognize a constitutionally-enumerated right if the individual in question is wealthy and/or has political connections (although the two tend to go hand-in-hand), or where it would look too bad in the media if they refused?
How is it consistent with the 14th Amendment for those same states to fail to recognize the officially-recognized rights of people from other states?
To be clear, shall-issue carry licensing based on an objective set of standards is, arguably the current constitutional standard. That can mean mandatory training (even so far as to mandate state-certified instructors, and classes taking place in-state, as NV does), and that can mean rangetime (with or without shooting a mandatory qualification course). (the preceding are examples, not an exhaustive list)
“In the case of carry though, the government (in some places) alleges “harm†when people carry. Very clearly they make arguments for public safety and against blood in the streets….the government has an interest in stopping such harm.”
The “harm” alleged by states that continue to flout the U.S. Constitution on this issue is that they don’t want untrained and dangerous people running around in public with guns; A set of objective standards for the issuance of carry permits is the only current remedy to this alleged harm: Their current systems ensure that practically the only people carrying guns are current/retired cops (who are often not very well trained) and political cronies (who are often not trained at all). Thus, their current laws ENSURE, rather than prevent, the very harm that they allege.
I love Bob but his argument was pure hyperbole that people are attaching to out of emotion.
i thought so, but I wasn’t completely sure, and since I wasn’t completely sure, I didn’t want anyone else to think now was a good time to go carrying into [insert anti-freedom state of choice].
You rock because you care and are considerate of how messages affect people. Thank you, truly.
Thanks. It’s always beneficial to be a cynic. I wish that weren’t the case, but when it comes to the federal courts, it’s best to take the disposition to be pleasantly surprised when they please you, and not to surprised when they don’t.
why do you think he was jesting?
The Hoplos will try to use the “harm” argument, which is laughable, in that, I “harm” them just by carrying a defensive tool.
Here is one way we can use this to make the Hoplo’s heads explode.
Just quote the ruling and finish like this:
“The fundamental liberties guaranteed by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs” means that same sex marriage is ok because that’s a personal choice, identity, and belief, but my right to carry a weapon as a personal choice, identity, and belief is not?
It’s an argument to use in front of the court when you’re arguing in that context. It does not mean it’s now legal for you to go tote a gun to say, New Jersey. If you do that, you’ll be arrested and charged, and you can raise this argument in court, which will be thrown out because the Third Circuit has already ruled there’s no right under the constitution to carry, and the Supreme Court denied cert when that ruling was appealed.
None of this is right, but it’s what the law actually is right now, not what we wish it to be.
I guarantee that the Court will not treat this the same. SSM is the progressive shibboleth (look it up) and whatever rules apply to it have no applicability to any right actually written in the Constitution.
I would have to agree. It isn’t just this decision, but the last two on ObamaCare, and it’s a pattern that’s been shown by the Court at least since Roe v. Wade (and likely earlier as well): the Supreme Court decides what it wants the decision to be, and then twists and turns themselves (into pretzels, if necessary) until they get the reasoning that gives them the results they want.
Admittedly, sometimes what they want actually has a Constitutional and Lawful basis, in which case they don’t actually have to twist themselves…but more often than not, their results are comical, or would be if they didn’t have far-flung ramifications about the meaning (or lack thereof) of the Constitution, the Law, and our Liberties.
(Full disclosure: I say this as someone who thinks SSM is evil, but is open to the idea of polygamy, and in general thinks that the State shouldn’t be involved in marriage at all–marriage is something that should be handled by contract law–and I realize that a lot of the injustices caused by divorce law and whatnot is a result of the State intruding on an issue that rightly belongs in individual hands–and the Supreme Court’s wholesale making SSM legal is going to complicate these issues even further, because the legislatures aren’t going to have the opportunities they need to iron out the complications of expanding the definition of marriage…)
I think the argument that the reasoning and language of the Obergefell decision supports gun rights is sound, at least on paper.
The issue is not in the soundness of the arguments, but in the intransigence of the courts on this issue, “because guns.”
Bob’s not doing a good job at the internet lawyering thing.
Until we win on Constitutional Carry, carry requires a license. And you’d like to think that the Full Faith and Credit clause would permit that, but for the fact that Congress gets to lay out what the FF&C Clause applies to.
I’m not a fan of this kind of hyperbole.
Hell, ask Gura, who at his heart isn’t a 2nd Amendment guy per se. He wants to knock over all of the “Slaughter House Cases,” get the Court to finally admit that 14 says what it means, and dispose of the idea that fundamental rights must be “incorporated.”