Avoiding the Question

The U.S. Supreme Court made an unconscionable mistake today. In declining to review the matter of Woollard v. Gallagher, which questioned the constitutionality of requiring “good and substantial” cause for the issuance of a permit to carry a handgun, the high court has signaled with dread certainty that it will do nothing to protect the civil right to bear arms for the nearly 100 million Americans who reside in prohibitionist states. Moreover, this shirking of responsibility will doom the nation at large to suffer the consequences of decades of frustration that must soon be released.

Though several right-to-carry challenges still remain active in the federal courts, we have no reason to expect different outcomes for these cases. Those subjects of California, New York, New Jersey, Massachusetts, Maryland, and the other gun-control bastions are now left with only two choices: flight or defiance.

A Friend for Woollard

I’m no lawyer, but I doubt that I could construct a stronger legalistic argument in support of the right to carry a handgun under the Second Amendment than that presented in the Cato Institute’s amicus brief to the U.S. Supreme Court advocating its review in the matter of Woollard v. Gallagher. The high court must take up this case and settle the underlying constitutional question. To do otherwise would be to shirk its duty and expose the entire body of our civil rights to potential abuse under the same methods used to deny the right to bear arms.

A Loss for Woollard

Regressing to the mean, the U.S. Court of Appeals for the Fourth Circuit has reversed the district-court decision in what is now Woollard v. Gallagher. Ruling for the state, the court held that while Maryland’s requirement of “good and substantial reason” for a permit to carry a handgun in public does burden the right to bear arms under the Second Amendment, it is still “constitutionally permissible.” However, as Eugene Volokh notes, “a constitutional right that can be trumped in nearly all its applications, under whatever level of scrutiny, is not really a right.”

Meanwhile, we wait to see whether the U.S. Supreme Court will take up Kachalsky v. Cacace and if Illinois will petition the same for review of its loss in Moore v. Madigan.

Right-to-Carry Litigation in Summary

While the police finished murdering each other in southern California, and the President prepared “massive” proposals for the Congress, the case of Piszczatoski v. Maenza [now Drake v. Jerejian, 1/09/14] was argued before the U.S. Court of Appeals for the Third Circuit. With an en banc review of the decision in Moore v. Madigan looking unlikely, a victory in Piszczatoski would deepen the circuit split created by the loss in Kachalsky v. Cacace and thus make the conflicting jurisprudence even more difficult for the U.S. Supreme Court to avoid reviewing. Here is a summary of the major right-to-carry cases for those keeping score.

Kachalsky v. Cacace	New York	Lost on appeal at USCA2.
Moore v. Madigan	Illinois	Won on appeal at USCA7.
Palmer v. D.C.	D.C.	Won at U.S. District Court.
Drake v. Jerejian	New Jersey	Lost on appeal at USCA3.
Peruta v. San Diego	California	Petitioned to U.S. Supreme Court.
Richards v. Prieto	California	Lost on rehearing at USCA9.
Woollard v. Gallagher	Maryland	Lost on appeal at USCA4.

There is a host of other right-to-arms cases that are working their way through the federal court system, but this is the vanguard litigation. A historical turning point is at hand, though some people can’t or won’t see the important civil-rights implications at work here. Few people need to carry guns, they argue, but then very few people needed to abort pregnancies … or to marry the spouses of their choice … or to ride at the front of the bus.