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SCOTUS Declines To Hear CCW Case


The U.S. Supreme Court declined to hear Masciandaro v. United States today.

Amid all the speculation about why SCOTUS would refuse the case- suggestions that they don’t want to take on concealed carry rights, for instance- I believe there’s a more-probable, but less-obvious reason: I think SCOTUS doesn’t want to overcomplicate the Obamacare case.

Let me explain: Obamacare will basically be an argument about states’ rights- the states’ right to resist a federal intrusion into the health care industry. This being the case, I believe SCOTUS decided to avoid taking on concealed carry because the “states’ rights” arguments regarding the Second Amendment are exactly opposite those of Obamacare.

Stated another way:

If SCOTUS decided in Masciandaro that states are limited in their authority to regulate concealed carry, but then decide in Obamacare that states have authority to resist intrusive federal acts, then the message from the court would appear to be very consistent with the Tenth Amendment- a limitation on federal intrusion on the states, and a limit on state intrusion on the people;

If SCOTUS decided that states had sweeping authority to resist both the federal government’s actions and to regulate individual behavior, SCOTUS would be effectively transferring a tremendous amount of power to the states- something it really hasn’t done in recent memory;

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If SCOTUS decided that states had no authority to resist the federal government, and little authority to regulate individual behavior, then SCOTUS would effectively be stripping the states of a great deal of authority, and make the nature of the government relationship one between the federal government and the public, with the states being mere subdivisions;

If SCOTUS decided in favor of Obamacare and in favor of states regulating concealed carry, the court would be depriving the public of a substantial amount of individual autonomy, deciding that governments- either state or federal- could define and regulate the exercise of individual rights.

Knowing that nobody can accurately predict how Obamacare will be decided- I doubt even the Justices themselves can say for sure- I think the Supreme Court is attempting to avoid “doubling-down” on a message inconsistent with its real intent- whatever that intent may be.

By itself, Obamacare is an incendiary issue. Add gun rights to it and it becomes politically explosive.

About Alex Kauffman


  1. I think your interpretation is different than many gun right’s advocates.

    I don’t see gun ownership as a state’s rights issue – I see it as an individual right as protected by the Constitution. That is different than Obamacare, which is not protected in our founding document.

    The constitution (specifically the second amendment) says that the right to keep and bear arms shall not be infringed – by anyone. To me, that means that neither the states nor the federal government has the right to restrict that right.

    The 10th amendment (commonly quoted for state’s rights) says that any powers not given specifically to the feds shall be given to the states or people. That does NOT allow the states to infringe upon a Constitutionally protected right. Ohio cannot restrict the freedom of the press simply because the feds choose not to – no one may infringe upon that right.

    I think this comparison between the CCW case and Obamacare is close, but not right on. If the Federal government were .. let’s say .. trying to force everyone to buy a gun under penalty of a fine – that would be in the same arena.

    • That’s exactly the point I’m making- you and I and every other “gun scholar” know the individual nature of gun rights. The problem is, most of the public doesn’t, and we can’t be certain SCOTUS does either (aside from Justice Thomas, whose comments in McDonald are well worth reading).

      Most of the public see all issues as either “federal” or “state”- and therein lies the rub. I think SCOTUS is avoiding sending a wrong message on state’s rights- not to us, who have a profound knowledge of the issues involved- but to the average voter who doesn’t.

      Stated differently, the problem isn’t a comparison between CCW and Obamacare, the problem is the public perception of “state vs. federal” clashing with the polar-opposite realities of the two issues.

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