Obergefell and Guns

For supporters of traditional marriage and, more broadly, social conservatives, the Obergefell decision has obviously been a huge disappointment. Using the Fourteenth Amendment’s Due Process clause, the Supreme Court invented a fundamental right to marriage, in particular, same-sex marriage. It is by no means an adequate consolation prize, but the interpretation of the amendment by the court might open the way to further gun rights reforms. Over at our Salem sister site Bearing Arms, Bob Owens has spent a good deal of time covering this. On Friday, he posted about how the decision could be used to argue for nationwide concealed carry reciprocity. In essence, he says:


The vast majority of states are “shall issue” on the matter of issuing concealed carry permits, and enjoy reciprocity with a large number of other states.

My North Carolina concealed carry permit, for example, was recognized yesterday as being valid in 36 states, which just so happened to be the number of states in which gay marriage was legal yesterday. But 14 states did not recognize my concealed carry permit yesterday.

Today they must.

Using the same “due process clause” argument as the Supreme Court just applied to gay marriage, my concealed carry permit must now be recognized as valid in all 50 states and the District of Columbia.

I am opposed to the kind of legislating from the bench that the Supreme Court used to arrive at its decision in Obergefell, but I must confess that I find the thought of taking this argument before the court intriguing. The Supreme Court might no longer be an ally of conservatives, but the have been friendly to gun rights in the recent past, meaning there’s a chance the argument might hold up.

What makes Owens’ argument even more interesting, as he discovered over the weekend, is that the Second Amendment was specifically invoked in an amicus brief against gay marriage filed by Marc Greendorfer for the Obergefell case. Here’s what Greendorfer says:

The most obvious example is the Second Amend- ment right to keep and bear arms. One day, this Court will have to explain how sweeping restrictions on every aspect of firearms ownership and use can be upheld yet traditional and long-standing regulations on marriage cannot be tolerated in any form or in any jurisdiction. In the wake of this Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008) (finding an individual right to keep and bear arms) a number of state and local governments imposed draconian restrictions on firearms, claiming that the restrictions were reasonable and common sense, and did not infringe the core right protected by the Second Amendment. See, e.g., Marc A. Greendorfer, And the Ban Played On: The “Public Safety” Threat to Individual Rights, available at http://papers.ssrn. com/abstract=2426704 (examining post-Heller lower court decisions to demonstrate the extent to which Heller was used to impose even greater infringements on the Second Amendment right). Much of the justification for recognizing a right to same sex marriage in the instant case rests on the claim that same sex couples have children that are harmed by the denial of marriage licenses.


The majority’s ruling on the subject did not, as far as I can tell from the ruling, make any attempt to limit their interpretation of the Fourteenth Amendment’s Due Process solely to the subject of same sex marriage. Justice Kennedy’s ruling utilized broad and sweeping, not narrow, language on the subject. Moreover, the Supreme Court must have read Greendorfer’s amicus curiae as part of their due diligence for the case.

As I said before, none of this is a consolation prize for the Pandora’s Box opened by this ruling. Furthermore, I am opposed to legislating from the bench, but it would nevertheless be interesting to see how an argument like Owens and Greendorfer’s holds up under future scrutiny. Our legal system is one bound by precedent, so it’s entirely possible that a court will find it a valid assertion.

Regardless, it is my hope that this ruling is one day overturned. That might be all but a pipe dream, but I think it is something we should still be working on. Part of that includes working to persuade people; part of that means working on getting better leaders in Washington, both elected and on the judiciary; and part of that is just good old fashioned prayer.


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