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While the 2nd Amendment Sets Rules, Blue States Play Games

exemplar retail gun space

(Billy Blume/

Michael Dorstewitz By Wednesday, 24 April 2024 11:58 AM EDT Current | Bio | Archive

Despite the clear language of the Second Amendment and the Supreme Court’s interpretations of it, state and local lawmakers continue defying these rights, and denying their citizens of the ability to lawfully keep and bear arms.

This practice keeps national gun rights organizations like the Second Amendment Foundation and the Firearms Policy Coalition busy filing federal lawsuits on behalf of aggrieved law-abiding gun owners.

But state and local governments defying black-letter law is nothing new, according to Heritage Foundation senior legal fellow Amy Swearer, who specializes in Second Amendment law.

"This isn’t some bold new strategy by gun control activists. It’s the exact same strategy they had after Heller and McDonald — water the opinions down, misapply them, or just straight up ignore them to get the desired result, and then dare the Supreme Court to do something about it," she told Newsmax.

D.C. vs. Heller held that the District of Columbia couldn’t restrict residents from acquiring and keeping modern handguns that are "in common use at the time" in their home.

McDonald vs. Chicago prohibited states from infringing upon those same rights.

"Unfortunately, this is a strategy that has worked to great effect in the 15-plus years since Heller," Swearer continued.

"These lawmakers realized that many lower court judges (including clear majorities of some federal circuit courts) simply weren’t interested in following the letter or spirit of the Supreme Court’s Second Amendment precedent."

The most recent example may also be the most outrageous.

A New York City judge told defense counsel during his opening statement that the Second Amendment "doesn’t exist here. So you can’t argue Second Amendment. This is New York."

The case involved a 52-year-old Brooklyn software engineer who took up gunsmithing as a hobby during the COVID-19 lockdowns.

He lawfully purchased unfinished gun frames and receivers, then machined and assembled them in his home workshop. When he was arrested in 2022 he had 5-6 AR-style rifles and 7-8 handguns, according to his lawyer.

But Swearer observed that an activist lower court isn’t the only problem.

"Worse, it became clear that the Supreme Court itself wasn’t really interested in taking up any additional cases to meaningfully vindicate and enforce its rulings, much less to add any flesh to the barebones framework it created," she explained.

"In other words, these lawmakers were playing the statistical odds that they could get the laws they wanted upheld by lower courts who were willing to render Heller and McDonald toothless, and that the Supreme Court would stand by while it happened."

Heller was decided in 2008; McDonald two years later.

The high court heard no significant Second Amendment cases for more than a decade after Heller, although aggrieved gun owners filed petitions each year.

It reached the point where in 2020 conservative Justice Clarence Thomas had had enough.

That year the court declined to hear 10 Second Amendment cases, prompting Thomas to file a scathing 19-page dissent, most of which was joined by Justice Brett Kavanaugh.

The other justices got the message.

The following year they agreed to hear New York Rifle and Pistol Association v. Bruen, and the following year they published a landmark decision in that case.

Another problem is that "the states with lawmakers most willing to thumb their nose at the Second Amendment are also generally located in federal circuits that were absolutely willing to go along with it," Swearer explained.

"Meanwhile, circuit splits rarely developed because the federal circuits which are most likely to uphold the letter and spirit of Heller and McDonald had jurisdiction over states that were the least likely to impose the types of laws needed to get us to a circuit split."

Circuit splits — where two separate federal circuit courts of appeal rule differently on identical issues — are the types of cases the Supreme Court is most likely to hear.

Swearer observed that "This is, for all intents and purposes, what’s happening after Bruen."

Alan Gottlieb, founder and executive vice president of the Second Amendment Foundation, agreed that this has been an ongoing problem, but was nonetheless optimistic.

"The gun prohibition lobby and the politicians who support them want to gut our Second Amendment rights. To do so they need to keep passing new laws and ignore the rulings from [the Supreme Court]," he told Newsmax.

"I have no doubt that we will soon get a few more rulings from the high court that smacks them down and reinforces our right to keep and bear arms."

On Monday a jury found the Brooklyn amateur gunsmither guilty of 14 criminal counts.

If his lawyer could have explained his client’s Second Amend rights to the jury — that "the right of the people to keep and bear arms, shall not be infringed" — maybe he wouldn’t be sitting in a jail cell awaiting sentencing.

Michael Dorstewitz is a retired lawyer and has been a frequent contributor to Newsmax. He is also a former U.S. Merchant Marine officer and an enthusiastic Second Amendment supporter. Read Michael Dorstewitz's Reports — More Here.

© 2024 Newsmax. All rights reserved.

State and local lawmakers continue defying rights, and denying their citizens of the ability to lawfully keep and bear arms.
firearms, heller, mcdonald
Wednesday, 24 April 2024 11:58 AM
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