Is the Second Amendment a Second Class Right?

I have said it a hundred of times: all Fundamental Rights need to be treated the same and judged with the same standard of scrutiny. One Fundamental Right that the Court wrongly treats different from other Fundamental Rights is the right bear and keep arms for self-defense (Second Amendment).

Since Heller v. D.C. (2008) and McDonald v. Chicago (2010), the Court has declined to hear numerous Second Amendment cases dealing with anything from safety and storage regulations to assault weapons. This changed last year when the Court decided Caetano v. Massachusetts without hearing oral arguments. The lower court decision was an egregious judicial error that the Court stepped in to correct matters. In this ruling Jamie Caetano was convicted because she used a “stun gun” to defend herself against an abusive boyfriend (she never used the stun gun, only threatened to use it). The lower courts obviously misapplied Heller. In fact, the lower courts told Ms. Caetano that she would not have been charged if she used a handgun. Justice Alito said “Courts should not be in the business of demanding citizens use more force for self-defense then they are comfortable wielding.” A “stun gun” was ruled unconstitutional because it was both “dangerous” and “modern”. A “stun gun” should be a type of weapon promoted for self-defense because it is non-lethal and therefore much less dangerous than any gun. To say (modern) electronic stun guns are “exempt from the Second Amendment protection” is equivalent to saying “electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment.” Massachusetts is a liberal state and they blatantly violated the rights of Caetano merely because they had a low opinion of the Second Amendment.

Also in 2016 in Voisine v. United States the Court held a Maine statute which denied persons convicted of misdemeanor domestic violence from possessing a firearm. Maine’s statute prohibits “intentionally, knowingly, or recklessly causing bodily injury or offensive physical contact to another person.” In Heller, the Court held regulations prohibiting felons and mentally ill persons from owning a firearm would be permissible. The problem with the Maine statute is it very broad and would restrict the rights of many persons who merely paid a fine or penalty for their misdemeanor crime. A mother slapping the face of her 18 year old son or a person who got in a fender bender because they were texting while driving would all be denied their right to self-defense. One can understand trying to keep guns out of the hands of violent persons, but these are not assaults, they are misdemeanor offenses. Since the law is so broad some readings of law may be Constitutional and others may be Unconstitutional. The “doctrine of Constitutional avoidance commands courts, when faced with two plausible constructions of a statute – one constitutional and the other unconstitutional – to choose the constitutional reading.”

For the first time in over a decade Justice Thomas broke his silence in oral arguments: “Can you give me another area where a misdemeanor violation suspends a constitutional right? He got no acceptable answer. He then asked “Let’s say that a publisher is reckless and violates a law against the use of children in ads which is misdemeanor violation. Could you suspend that publisher’s right to ever publish again?” Of course not. But liberal interpretations of the Second Amendment can prohibit a traffic ticket violator from their right to keep and bear arms for self-defense. Some of the misdemeanor infractions covered by the Maine statute are so minor that a citizen may qualify for a jury trial to prove their innocence. Any violation of someone’s rights is a travesty and an injustice that cannot be tolerated. But it is worse when the monopolized government is the one violating those rights. Oddly, only Justice Sotomayor joined Thomas’s dissent.