Honest individuals might disagree with the choice of the Founders to include the Second Amendment in the Bill of Rights. They cannot, however, pretend that the choice did not occur. However, gun control campaigners spent much of the twentieth century trying to persuade the public that “the right of the people to keep and bear arms” had nothing to do with the right of individuals to retain and carry weapons for their own self-protection.
The United States Supreme Court has overturned that deception four times in the past 15 years, which was never convincing to anyone who could read. However, Second Amendment denial remains an active strain of the weapon prohibition campaign, as evidenced last week by a federal court in Colorado, which decided that whatever the clause implies, it does not include the freedom to purchase a gun.
Rocky Mountain Gun Owners v. Polis was a case that challenged Colorado’s three-day waiting time for handgun sales. The law’s supporters were probably aware that it was in jeopardy following the United States Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, which established how lower courts should assess Second Amendment arguments to gun control statutes.
According to Bruen, “when the plain text of the Second Amendment covers an individual’s conduct, the Constitution presumptively protects that conduct.”
The government must next defend its restriction by proving that it is compatible with the country’s long history of weapons regulation.” This test is likely to herald the end of Colorado’s waiting period, given that such regulations were unknown to the generation that enacted the Second Amendment.
When confronted with this fact, Judge John L. Kane, appointed to the federal court by Jimmy Carter in 1977, chose to push logic to its limit by ruling that the right to carry a handgun does not include the right to obtain one.
The court acknowledged at the outset of its investigation that “the individual right to possess and carry weapons in case of confrontation” was a part of the Second Amendment rights established by the US Supreme Court in District of Columbia v. Heller in 2008.
However, Judge Kane continued to insist:
“[P]urchase and delivery are one means of creating the opportunity to ‘have weapons.’ The relevant question is whether the plain text covers that specific means. It does not.”
This “reasoning” allowed a state to outlaw the sale and transportation of weapons outright without violating the Second Amendment. This would suggest that one has the right to own something but not to get it by the easiest or most common route.
It is true, of course, that the Second Amendment makes no specific mention of obtaining or purchasing weapons. It’s also true that purchasing and receiving newspapers isn’t specifically covered by the First Amendment. However, a judge who maintains that prohibiting newspaper sales does not violate the First Amendment’s bar on “abridging the freedom of speech or of the press” will be dishonored and lose confidence in both his professional and intellectual capacities.
Judge Kane may have realized this, as he hedged his bets by providing many counterarguments for Colorado’s waiting period’s non-violation of the Second Amendment.
First, he postulated, “The Founders would not have expected instant, widespread availability of the firearm of their choice, so even if purchasing a firearm could be read into the terms ‘keep’ or ‘bear,’ receipt of a firearm without any delay could not be.” Judge Kane made an effort to support this claim by using “expert” testimony that suggested gun sales were not as easy, quick, or available during the founding era as they are now.
However, even these “experts” conceded that this was not because lawmakers purposefully chose to postpone the purchase of firearms, but rather because technology, manufacture, and marketing were far less advanced back then. Naturally, the founding generation had access to almost nothing that entailed the delivery of a commodity that was as effective and convenient as it is now.
However, the U.S. Supreme Court has made it plain time and again that it will not accept “frivolous” arguments that argue the constraints of technology in the 18th century define the extent of modern constitutional rights, as demonstrated in a case involving stun guns in the Second Amendment.
Judge Kane then cited a passage in Heller that he said made any limitation pertaining to “the conditions or qualifications” of the “commercial sale of firearms” “presumptively lawful.” Then he made the following claim: “The Waiting-Period Act in Colorado exclusively governs the sale of weapons, and dealers in particular. Anyone who does not “sell a firearm” is exempt from the Act.
Judge Kane was once again staking his argument on the distinction between sellers and purchasers, despite the fact that the contested issues in Heller had nothing to do with the sale of firearms, much less required waiting periods. The waiting time in Colorado infringes on the rights of both purchasers and sellers by creating an arbitrary and de facto barrier to gun purchases.
Coming back to the First Amendment, no one would accept an argument that said a person’s right to access information was unaffected only because a publisher or bookseller was subject to a specific restriction rather than the reader.
However, the wording Judge Kane used to support his argument that the Supreme Court should permit controlled gun sales goes against his main decision, implying that the Court views these transactions as the Second Amendment’s default starting point.
Even though he was mistaken about everything else, Judge Kane did not stop there. He offered yet another defense of Colorado’s waiting time as being compliant with the Second Amendment.
Again, he found waiting periods for gun sales to be compatible with America’s historical record of firearm control, even though he acknowledged – as the parties themselves recognized – that they were not known in American law until well into the 20th century. He cited the Waiting-Period Act and drunkenness laws as reasons for this, saying that “our Nation had a historical tradition of regulating the carrying and use of firearms by intoxicated individuals” and that “both work to prevent individuals in a temporary impulsive state from irresponsibly using a firearm.”
Plaintiffs attempted to point out to Judge Kane the obvious distinction that, while the waiting period applies to firearm sales generally, regardless of the buyer’s condition or state of mind, intoxication speaks to the condition of a specific individual at a specific moment. Judge Kane dismissed these arguments. In answer to this basic distinction, he stated that all inebriated individuals were impacted by the regulations, even if some of them may not have acted recklessly when in possession of a handgun.
In his parting shot, Judge Kane implied that the Supreme Court had expressed a broad willingness to consider shall-issue license programs for carrying weapons, provided that they were not intended for “abusive ends.” He said that as both need a “defined requirement” to be satisfied before exercising a right, and since the plaintiffs had not established that the waiting time was oppressive, this was comparable to the waiting period.
Judge Kane did not provide any guidelines as to what kinds of rules that enforced “defined requirements” before the exercise of the right to keep and bear weapons or that were allegedly intended to curb impulsive or reckless behavior may be allowed under the Second Amendment. However, it’s hard to see how his justification would be different from the “interest-balancing” that the Supreme Court explicitly rejected in Bruen, which similarly put the government’s stated purpose ahead of whether or not such actions were well-established in American history.
Perhaps no legal norm is so explicit and unambiguous that it cannot be deliberately misinterpreted by a judge who is more concerned with getting his desired result than with upholding the law. If Bruen’s historical test demonstrates anything, though, it’s that it makes identifying these judges simpler than before—at least in the Polis example.