Another federal court of appeals attacks the Second Amendment

Deputy Sylvester testified that Scott “flung open” the door and pointed his gun directly at his face. The plaintiffs presented evidence that when Scott opened the door and saw a man outside crouching with a gun, he immediately retreated, and his gun was at all times pointed down at his side. This next part is critical for understanding the danger of the court’s reasoning: Through the quirks of civil procedure, the court was required to evaluate the case as if the plaintiffs’ account was true.

Pay close attention, citizens of the Eleventh Circuit (that’s Alabama, Georgia, and Florida). If you exercise your constitutional right to keep and bear arms in your own home, agents of the state who show up at the wrong house and don’t announce themselves can kill you with legal impunity, even if you are retreating — and even if you point your gun at the ground.

As Slate’s Mark Joseph Stern notes in an excellent piece about the ruling, this is now the second federal court of appeals (the other being the Fourth Circuit, in an opinion I wrote about in January) that has essentially held that exercising your Second Amendment rights means diminishing your Fourth Amendment rights. In fact, that Fourth Circuit opinion was so broadly written that exercising your Second Amendment rights means that gun-owning citizens, in the words of a concurring judge, can even “face greater restriction on their concurrent exercise of other constitutional rights, like those protected by the First Amendment.”

Stern urges the Supreme Court to “step in” and affirmatively declare that the exercise of one constitutional right cannot diminish the protection of another. He’s right. And he’s also right that this is “an area where liberals and conservatives should be in agreement.”

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