Is Standing for the Second Amendment an Elitist View?
Our Response to NAACP, AGR and Brady Center.
Hello SMF family! As many of you know, oral arguments for our case, Washington v. Gators Custom Guns, are set to take place on January 14, 2025, at the Washington State Supreme Court. Over the holidays, Austin Hatcher has been diligently reviewing the State's amici responses and preparing our response.
Below, we’ve included a brief excerpt from our response for you to read. For the full response and the State’s submission, you can visit our website via the link provided at the end of this article.
To bring clarity as you read: “Respondent” is SMF/Gators Custom Guns.
Amici Curiae (“friend of the court;” an individual or organization who is not party to a case but offers their perspective) National Association for the Advancement of Colored People (“NAACP”), Alliance for Gun Responsibility (“AGR”), and Brady Center to Prevent Gun Violence (“Brady”) posit that ESSB 5078 is a “reasonable regulation” and a “common-sense gun safety” policy that will save lives.1 Not content to make their position known or offer their expertise to the court, amici cast [aspersions] personal attacks on Respondents, asserting that Respondents are callous to loss of life, or simply theorizing from an elitist point of view ensconced in an ivory tower. But Respondent Gator’s Custom Guns, Inc. is a small, family-owned business and Respondent Walter Wentz is a combat veteran who has honorably served his country and now faces tens of millions of dollars in potential penalties pursuant to the allegations made by Appellant. There is no callous disregard for life, or an elitist view unmoored from reality and the facts of life. There is however, a firm commitment to individual liberty and fundamental freedoms. Respondents simply assert that the fundamental right to defend themselves and the state, held by all Washingtonians, is impaired by ESSB 5078. Respondents’ action here is but the latest in a long line of undertakings aimed at preserving individual freedom;
“Eternal vigilance is the price of liberty – power is ever stealing from the many to the few … The hand entrusted with power becomes … the necessary enemy of the people.” Respectfully Quoted: A Dictionary of Quotations Requested from the Congressional Research Service (Suzy Platt, ed., Library of Congress, 1993) (quoting Wendell Phillips, speech in Boston, Massachusetts, January 28, 1852 – Speeches Before the Massachusetts Anti-Slavery Society, p.13 (1853)).
The Washington Constitution is an acknowledgement that “the philosophy of natural rights or natural law also resonated with constitutional framers, including the delegates to the Washington State Constitutional Convention.”2 At the time the Washington Constitution was ratified, Sir William Blackstone’s commentaries were widely read and accepted, which contained “his triune rule for absolute rights: ‘The right of personal security, the right of personal liberty, and the right of private property.’”3 Respondents simply entreat this Court to protect the fundamental rights of Washingtonians.
Amici AGR and Brady urge this Court to join the “tide” of decisions upholding magazine bans–no matter what particular term is used for them, or what capacity is deemed to be “large,” or “extra-large” or even if they are just “multi-bullet”–which is unmoored from any constitutional protection of the right.4 But “History teaches that grave threats to liberty often comes in times of urgency, when constitutional rights seem too extravagant to endure … [W]hen we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.”5 History is replete with examples of disarmament and genocide.6 Fundamental freedoms require protection by the courts, not merely giving way to a “tide” and getting swept up in the current. That results in shameful depredations of individual rights.
Amici AGR and Brady also misconstrue Respondents position, as there is no “collapsing” of federal and state constitutional analysis. There is, however, an acknowledgement that the U.S. Constitution establishes the “floor” below which the Washington Constitution cannot go in protecting the rights of Washingtonians. Under either constitution, ESSB 5078 violates the fundamental rights of Washingtonians to defend themselves and this state.
Argument
Amici collectively argue that ESSB 5078 will save lives. But the legislature wasn’t that sure; the legislative findings only go so far as to assert that ESSB 5078 “is likely to reduce gun deaths and injuries.” (NAACP Br. App. One at 3).
Of Note
In fact, Research indicates that 90% of mass shootings occur in so-called "gun-free zones.” While proponents of gun control often argue that the United States' mass shooting problem stems directly from Second Amendment protections, they claim stricter gun laws modeled after other countries are the solution. However, this narrative overlooks historical precedence and does not hold up under closer scrutiny of the data. Professor John R. Lott of Crime Prevention Research Center brings much clarity to the futility of disarming the public to “save lives”:
Over the course of 18 years, from 1998 to 2015, our list contains 2,354 attacks and at least 4,880 shooters outside the United States and 53 attacks and 57 shooters in this country. By our count, the U.S. makes up 1.49 percent of the killings worldwide, 2.20 percent of the attacks, and less than 1.15 percent of the mass public shooters. All these are much less than America’s 4.6 percent share of the world population.
Of the 97 countries where we identified mass public shootings, the U.S. ranks 64th per capita in its rate of attacks and 65th in fatalities. Major European countries, such as Norway, Finland, France, Switzerland and Russia, all have at least 25 percent higher per capita murder rates from mass public shootings.
While Americans are rightly concerned by the increased frequency and severity of mass public shootings, the rest of the world is experiencing much larger increases in per capita rates of attack. The frequency of foreign mass public shootings since 1998 has increased 291 percent faster than in the U.S.7
Historical precedence and continuous data collection efforts prove time and again that the assertion that disarming law-abiding American citizens will “save lives” is not true.
Continuing…
Respondents have briefed the standard necessary to have a statute repugnant to the constitution–which ESSB 5078 is– declared unconstitutional. But Respondents note here the irony that amici AGR and Brady misconstrue Respondents’ position that the federal and state constitutions should be analytically “collapsed” into a single, uniform test. That is not so; Respondents merely point out that this Court has previously determined that “application of the United States Constitution establishes a floor below which the state courts cannot go to protect individual rights. But states of course can raise the ceiling to afford greater protections under their own constitutions.”8 Logically, that means that if ESSB 5078 violates the United States Constitution–which it does–then it also violates the Washington Constitution. From an analytical standpoint, it also means that means-end scrutiny is not the correct mode of analysis, as recent U.S. Supreme Court cases have foreclosed such an approach in Second Amendment cases. It would be an awkward fit to have means-end scrutiny unavailable when analyzing the federal constitution, which establishes the “floor” of protection, while the state constitution, which can provide “greater protections” is analyzed from a means-end perspective. Regardless, intermediate scrutiny is not the proper level as urged by Appellant and Amici.
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States Response, page 2
Id. at 45 (citing 1 William Blackstone, Commentaries *129)
States Response, page 25-26
Daniel D. Polsby and Don B. Kates Jr., Of Holocausts and Gun Control, 75 Wash. U. L. Q. 1237 (1997); Don B. Kates, Genocide, Self Defense and the Right to Arms, 29 Hamline L. Rev. 501 (2006).
State v. Sieyes, 168 Wn.2d 276, 292, 225 P.3d 995 (2010).
Dear Silent Majority Foundation, the above article is a phenomenon of the power of conviction. I do not recall having read such convincing literature as you have provided here. Thank you for fighting the good fight. Bravo, to this most accomplished author.