First Amendment Attorney Gets Second Amendment All Wrong

The oral arguments in Wolford v. Lopez are over, but the complaints about the Supreme Court’s views on the Second Amendment from opponents of our right to keep and bear arms continues. 

Cincinnati attorney Jack Greiner, who represents Enquirer Media on First Amendment issues, penned a column for the Cincinnati Enquirer in the wake of the oral arguments held earlier this week, and though he apparently gleaned all of his information about the arguments from press accounts instead of listening to them or reading the transcript, he’s got some strong (and stupid) opinions about the case and the Court’s treatment of the Second Amendment. 

Based on reporting in The New York Times, the six conservative Justices appeared skeptical of the law. At one point in the oral argument Justice Samuel Alito remarked that the Hawaii law had relegated the Second Amendment to “second-class status.”

I’m not surprised by Alito’s statement, but I think it is misdirected. The Second Amendment, particularly under this Supreme Court, firmly occupies a choice first-class seat. The amendment that has been forced to schlep to coach is the First Amendment, and particularly the free speech clause.

Greiner apparently has some trouble with reading comprehension. Alito’s comment was directed at Hawaii treating the Second Amendment as a second-class right, not SCOTUS. And why shouldn’t the Second Amendment be treated with the same deference and respect given to other protections for enumerated rights? 

Well, because Greiner seems to think that the Second Amendment doesn’t protect an individual right to keep and bear arms. 

The Second Amendment’s upgrade to first-class status got a huge boost in 2008 when the court, in an opinion penned by Justice Antonin Scalia, effectively wrote the “well-regulated militia” clause out of the Constitution. In that case, the court struck down a handgun ban and trigger lock requirement in Washington, D.C. Because that decision applied only to Washington, D.C., in 2010, the court in McDonald v. City of Chicago expanded the holding to all U.S. cities and states.

According to Giffords Law Center, following the lead of SCOTUS, lower courts have since in that time struck down laws restricting the concealed and open carry of loaded guns in public, bans on assault weapons, large capacity magazines, and silencers, extreme risk protection orders and other prohibitions on dangerous people possessing guns, firearm design safety standards, safe storage requirements, waiting period laws and private-sale background checks and licensing laws. Based on this track record, I’d say the Second Amendment is reclining in first class and ordering its second gin and tonic.

And how many of those issues has the Supreme Court addressed? Concealed carry in Bruen and prohibitions on “dangerous” people possessing guns in Rahimi, though that dealt with a domestic violence restraining order and not extreme risk protection orders. To date, though, the Supreme Court has declined to take up cases dealing with hardware bans, permit-to-purchase laws, storage mandates, suppressors, age-based gun bans, and many other important issues. 

The litany of 2A cases Greiner brings up have a mixed track record in courts around the country. So far, for example, not a single court of appeals has ruled that bans on commonly owned semi-automatic rifles and magazines that can hold more than rounds violate our right to keep and bear arms. That will likely change when the Third Circuit issues its opinion about New Jersey’s gun and mag bans, but Greiner is deluding himself and his readers if he honestly thinks that the lower courts have been striking down every gun control law they consider. 

And aside from the Second Amendment, federal law pampers gun manufacturers via the Protection of Lawful Commerce in Arms Act. This law severely limits the ability of those injured by gun violence to sue. I’m not aware of any other product that gets this kind of get out of jail free card.

Yeah, it limits the ability to sue gun makers for the actions of criminals. And if other products don’t have that protection from Congress, it’s because no one’s suing companies like Ford for the actions of drunk drivers. If that became a problem, I’m pretty sure Congress would act. 

So, contrast this with the treatment the First Amendment’s speech clause gets. That clause says, “Congress shall make no law . . . abridging the freedom of speech . . . .” That is unequivocal. There’s no “well-regulated militia” language for the court to ignore.

The Court didn’t ignore the prefatory clause in the Second Amendment in Heller. It explained that while militia service is one reason for the right to keep and bear arms, it’s not the only reason. It’s Greiner who’s ignoring the phrases “the right of the people“ and “shall not be infringed.” 

And there is no statute prohibiting the public from bringing lawsuits against publishers like the Protection of Lawful Commerce in Arms Act. If there were, the frivolous defamation suits President Trump has filed would never have seen the light of day.

The PLCAA doesn’t prevent anyone from filing a lawsuit. It prevents junk lawsuits from moving forward. And for the First Amendment, the Court has set a fairly high bar for libel and slander suits, which is why some of Trump’s lawsuits have been rejected by courts. 

Honestly, if Greiner’s column is indicative of the arguments that he brings to the courtroom, God help his clients. 

There shouldn’t be a contest between which enumerated rights are more important. As far as I’m concerned, they’re all equally critical for our ability to live with liberty and freedom. It’s a shame that someone who champions our First Amendment rights doesn’t feel the same way.

Editor’s Note: The mainstream media continues to lie about gun owners and the Second Amendment. 

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