Right-Wing Media Rope Bush-Appointed Judge Into Obama's Second Amendment "Assault"

››› ››› MATT GERTZ

Right-wing media outlets are suggesting that a recent decision by Obama-appointed Judge Sue Myerscough dismissing a case that sought to overturn Illinois' ban on publicly carrying firearms is evidence of President Obama's "assault on the Second Amendment." But the Supreme Court has not ruled on the constitutionality of such bans, and Myerscough's ruling is consistent with those of several other judges, including one appointed by President George W. Bush.

Conservatives Call Judge's Decision Evidence Of "All-Out Attack On The Second Amendment"...

Hawkins At Daily Caller: Those Who Wonder What Obama's "Assault On The Second Amendment Might Look Like" Should Look At Judge's "Unbelievable Decision." From a February 13 Daily Caller op-ed by conservative blogger AWR Hawkins:

When Wayne LaPierre, executive vice president of the National Rifle Association (NRA), spoke at CPAC on February 10th, he predicted that if Barack Obama wins a second term it will usher in an all-out attack on the Second Amendment. In so many words, he said the same people who brought us Fast and Furious, "a criminal enterprise" for which there has yet to be prosecutions, will use four more years to gut constitutional protections on the right to keep and bear arms. And anyone who wonders what this assault on the Second Amendment might look like need look no further than Illinois, where a judge that President Obama appointed has just ruled that we have the right to keep arms, but not to bear them.

That's not a typo. Rather, it's an unbelievable decision recently delivered by U.S. Judge Sue Myerscough, in a challenge which the Second Amendment Foundation filed against Illinois's ongoing prohibition against carrying concealed weapons in that state. Said Myerscough, in rendering her decision: "[Although the] plaintiffs argue that the Second Amendment protects a general right to carry guns that include a right to carry operable guns in public ... [the] Supreme Court has not recognized a right to bear firearms outside the home."


If Obama manages to get re-elected, be ready to see more of these Myerscough-like decisions come down the pike. Decisions where judges give lip service to the Second Amendment on the one hand, while stealthily undercutting it on the other. In doing this, Obama judicial appointees will only be following their master's lead. [Daily Caller, 2/13/12]

Weasel Zippers: "Obama Judicial Appointee Says Americans Have The Right To Keep Arm, But Not To Bear Them." In a post headlined "Obama Judicial Appointee Says Americans Have The Right To Keep Arm, But Not To Bear Them," Weasel Zippers excerpted Hawkins' piece and commented: "It's not like the Second Amendment explicitly states it's the 'right of the people to keep and bear arms' . . . no, wait?" [Weasel Zippers, 2/13/12]

... And Claimed An "Near Inexplicable Gulf" Between Judge's Decision And Supreme Court

Hawkins Suggested Judge Myerscough's Decision Is At Odds With Supreme Court Precedent. From Hawkins' piece:

Moreover, in 2010, after the Supreme Court heard arguments for and against Chicago's handgun ban in McDonald v. Chicago -- a case which grew out of Chicago citizen Otis McDonald's desire to be able to defend his life and property -- the court ruled against the handgun ban, citing the fact that "self-defense is a basic right." The court also pointed out that "self defense is 'the central component' of the Second Amendment right." (Italics in original)

Clearly, there is a chasm of understanding between the Founding Fathers and U.S. Judge Myerscough, for the Founding Fathers recognized that God endowed us with the right not only to keep arms but also to bear them. Likewise, there is a near-inexplicable gulf between the Supreme Court's McDonald decision and the one Myerscough just handed down. For the Supreme Court understands that the inalienable right to self-defense -- "a basic right" -- is foundational to the Second Amendment while Myerscough believes arms are to be kept not borne (a decision which necessarily limits our ability to defend ourselves). [Daily Caller, 2/13/12]

But The Supreme Court Has Explicitly Stated Only That Bans On Gun Possession In The Home Are Unconstitutional...

Scalia in Heller: "Ban On Handgun Possession In The Home Violates The Second Amendment." In an opinion joined by Chief Justice John Roberts and joined by Justices Anthony Kennedy, Clarence Thomas, and Sam Alito, Justice Antonin Scalia struck down the District of Columbia's ban on handgun ownership, writing:

In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home. [Scalia opinion, District of Columbia v. Heller, 6/28/08]

Scalia In Heller: Second Amendment Right "Is Not Unlimited," And Some Restrictions On Carrying Firearms In Public Have Long Been Upheld. In his opinion, Scalia wrote:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See,e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students' Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Scalia opinion, District of Columbia v. Heller, 6/28/08]

Alito in McDonald: Heller Court Held That Second Amendment "Protects The Right To Possess A Handgun In The Home." In an opinion joined by Roberts, Kennedy, and Scalia, Alito wrote:

In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. See Duncan, 391 U. S., at 149, and n. 14. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. [Alito opinion, McDonald v. City of Chicago, 6/28/10]

... And The Supreme Court Did Not Rule On The Constitutionality Of Laws That Regulate Public Carrying Of Firearms ...

Bush Appointee Seventh Circuit: Following McDonald And Heller, The Constitutionality Of "Open Carry Rights ... Is Unsettled Territory." From a decision by the U.S. Court of Appeals for the Seventh Circuit, which governs Myerscough's court, written by George W. Bush appointee Diane Sykes and joined by Ronald Reagan appointee Joel Flaum and Bill Clinton appointee Diane Wood:

Whatever the Supreme Court' s decisions in Heller and McDonald might mean for future questions about open-carry rights, for now this is unsettled territory. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. REV. 1443, 1520 (2009) (open-carry rights under the Second Amendment may be "a major area of debate in courts in the coming years"); see also Nelson Lund, Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. City of Chicago, 63 FLA. L. REV. 487, 505 (2011) ("We do not yet know how the courts will rule on laws that forbid both open and concealed carry of firearms.") [Sykes opinion, Gonzalez v. West Milwaukee, 2/2/12]

... Furthermore Her Decision Was Consistent With Those Of Other Judges, Including A Bush Appointee

Bush-Appointed Judge Seibel: Both Open And Concealed Carry Are "Outside The Core Second Amendment Concern Articulated In Heller." In her 2011 ruling in Kachalsky v. Cacace, in which plaintiffs claimed that New York's handgun licensing system violates the Second Amendment, U.S. District Court Judge Cathy Seibel wrote:

This emphasis on the Second Amendment's protection of the right to keep and bear arms for the purpose of "self-defense in the home" permeates the Court's decision and forms the basis for its holding -- which, despite the Court's broad analysis of the Second Amendment's text and historical underpinnings, is actually quite narrow.


To the extent that Plaintiffs are attacking New York's statutory scheme as precluding open carry -- and it is by no means clear that they are, given their concessions that each applied "to carry concealed handguns," their focus on Section 400.00(2)(f) in particular, and their seeming rejection of open carry as a reasonable alternative to concealed carry, such carrying is likewise outside the core Second Amendment concern articulated in Heller: self-defense in the home. [Seibel opinion, Kachalsky v. Cacace, 9/2/11, citations omitted]

  • Seibel Is A Bush Appointee. Seibel was nominated by President Bush to the U.S. District Court for the Southern District of New York on March 11, 2008. [Federal Judicial Center, accessed 2/14/12]

Judge Walls: "The Second Amendment Does Not Include A General Right To Carry Handguns Outside The Home." In his ruling in Piszczatoski v. Filko, in which plaintiffs challenged the constitutionality of New Jersey's handgun permitting law, U.S. District Court Judge William H. Walls wrote:

The plaintiffs, five individuals denied handgun permits and two issue advocacy organizations, assert that the Handgun Permit Law is facially unconstitutional because it encroaches upon an alleged fundamental right to carry operable handguns for self-defense under the Second Amendment of the United States Constitution.


The Court finds that the Handgun Permit Law is not facially unconstitutional. The Handgun Permit Law does not on its face burden protected conduct because the Second Amendment does not include a general right to carry handguns outside the home. [Walls opinion, Piszczatoski v. Filko, 1/12/12]

Myerscough Cited "Many Courts In Other Jurisdictions" That "Have Reached A Similar Decision Regarding The Heller Decision." In her decision, Myerscough wrote that "In concluding that the Second Amendment right in Heller is limited to the right to bear arms in the home for self-defense, this Court notes that many courts in other jurisdictions have reached a similar conclusion regarding the Heller decision," then cited Piszczatoski v. Filko, Kachalsky v. Cacace, Osterweil v. Bartlett, Gonzales v. Village of West Milwaukee, Moreno v. N.Y. City Police Department, United States v. Tooley, People v. Aguilar, People v. Dawson, Williams v. State of Maryland, Little v. United States, Mack v. United States, and State of Kansas v. Knight. [Myerscough opinion, Moore v. Madigan, 2/3/12]

Posted In
Justice & Civil Liberties, Guns
Weasel Zippers, Big Government
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