For many decades, gun control proponents who saw their fortunes wane in legislatures from coast to coast and who were unable to get traction with Congress could at least console themselves with the thought that activist courts had their backs. The Second Amendment, after all, had been all but written out of the U.S. Bill of Rights by law professors and politically-minded judges, as cities and even the U.S. Congress increasingly adopted gun control in the Twentieth Century.
But none of that could change the text, history, or tradition of the Second Amendment, which led to an unbroken and uniquely American embrace of private gun ownership as a defense against crime and tyranny and also gave rise to the popular understanding of bearing arms as a birthright of U.S. citizenship.
Those facts and that understanding were formally recognized as constitutional doctrine by the U.S. Supreme Court in the landmark Heller case in 2008.
But the anti-gun orthodoxy, which by then had taken hold of the U.S. legal establishment, would not relent easily. For over a decade courts have generally ignored the holding and reasoning of Heller (and its 2010 follow-up McDonald) to uphold most of the same gun control whose passage was predicated on the idea that the Second Amendment had nothing to say about individual gun ownership or use.
Now, however, the Second Amendment is back before a U.S. Supreme Court that features the strongest majority of originalists in modern times. An originalist is simply a judge who believes that constitutional provisions should be interpreted according to the way they were understood by the public at the time of their adoption (as opposed to proponents of a living constitution, who basically believe the U.S. Constitution has no fixed meaning and should always yield to what the elite consider the necessities of progress and “good” policy).
This does not bode well for the respondents in the current Supreme Court case, who are stuck with arguing that the right to “bear arms” somehow allows for state and local officials to impose a “special need” for exercising the right that effectively screens out most of the law-abiding population.
With a dubious chance of prevailing on the merits, anti-gunners have adopted a tactic of not-so-thinly-veiled threats to delegitimize and even dismantle the U.S. Supreme Court itself if they don’t get their way.
Proposals to pack the court, to establish term limits for justices, to reduce the Supreme Court’s jurisdiction to hear cases, or even to abolish the court in its current form are now in vogue on law school campuses, in opinion pieces of far left media outlets, and even in the U.S. Congress and White House.
These efforts intensified with President Trump’s appointment of three established originalists to the U.S. Supreme Court. They are now reaching a fever pitch as the court embarks on a new term with numerous high-profile issues before it, including the scope of the right to bear arms.
Part and parcel of these efforts is trotting out luminaries of the legal world to lecture the public about the supposedly radical changes these justices are about to unleash on the country. Ironically, however, even these arguments usually devolve to the idea that the court will simply revert to an earlier status quo that was itself disrupted by activist decisions that disregarded public opinion, to say nothing of laws enacted by democratically elected legislatures.
For example, a recent op-ed by Erwin Chemerinsky, dean of the University of California Berkeley School of Law, ominously suggests that the Supreme Court’s current make-up is the result of a sinister plot that dates back to the Nixon administration.
Besides its over-the-top rhetoric, the article contains blatant legal falsehoods that belie the author’s prestige and notoriety.
The biggest whopper is Chemerinsky’s statement, “From 1791, when the 2nd Amendment was ratified, until 2008, not one federal, state or local gun regulation was struck down.”
That statement is demonstrably false. Numerous cases invalidated various gun control laws during that time period.
For example, the Vermont Supreme Court found a license requirement for the carrying of firearms in public invalid under the state constitution in the 1903 case of State v. Rosenthal. The Green Mountain State has left the public carry of firearms essentially unregulated ever since.
The Heller decision itself catalogs others examples, including the 1846 Georgia Supreme Court case of Nunn v. State (invalidating a ban on the open carrying of pistols).
Then there are cases that found gun laws invalid for reasons other than the Second Amendment or a state right to arms, including United States v. Lopez (Supreme Court in 1995 finds Gun Free School Zones Act exceeded Congress’ Commerce Clause Power) and Printz v. United States (Supreme Court in 1997 invalidates certain provisions of the Brady Handgun Violence Prevention Act under constitutional principles of federalism).
It doesn’t take a law degree to debunk Chemerinsky’s false statement. A simple Internet browser search would suffice.
The fact that he would make such a statement therefore shows a brand of arrogance that can only come from one who sees others as inferior to himself and incapable of drawing their own rational and well-research conclusions.
There is no sense in which Chemerinsky’s statement is literally true.
But even if Chemerinsky’s statement is generously interpreted to apply only to laws invalidated under the Second Amendment, it is still false and materially misleading.
First, the above-mentioned Nunn case did rely on the Second Amendment (although it’s true it didn’t invalidate the act in question in its entirety, but only as it applied to open carry).
But the more fundamental point is that any constitutional law professor should know that courts throughout U.S. history would have seldom had occasion to consider the meaning of the Second Amendment until well into the 20th Century.
The right to keep and bear arms wasn’t particularly controversial or heavily regulated during the Founding and pre-Civil War eras.
Gun control first gained major traction in the U.S. as Southern states attempted to use prohibitory and licensing laws to selectively disarm freedmen during the Reconstruction era.
New York later followed suit in 1911 with passage of the Sullivan Act requiring a license for handguns. This time, however, the law was primary aimed at discriminating against Italian immigrants and other newly-arrived supposed undesirables.
Moreover, in 1875, the U.S. Supreme Court specifically held that the Second Amendment applied only to actions by the federal government, which wouldn’t impose any significant gun control law until the 1930s. The Supreme Court reaffirmed that decision in 1894. Thus, courts were essentially barred by Supreme Court precedent from judging any gun control law under the Second Amendment for a period of over 50 years.
Heller makes this point itself:
It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. … It is demonstrably not true that, as JUSTICE STEVENS claims, … “for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.” For most of our history the question did not present itself.
When the U.S. Supreme Court finally revisited the Second Amendment in the 1939 case of U.S. v. Miller, there was no one even advocating on behalf of the defendant, much less on behalf of the civil right contained in the Second Amendment. It was a bizarre, one-sided case, with argument presented only by the government. But even at that, the court still issued a narrow opinion that focused only on what sorts of firearms are protected by the Second Amendment, not on the people actually protected by the right or the scope of the right’s protection for various activities.
Indeed, the court’s opinion assumed that Miller as a private individual not serving in a militia had standing to raise the right in a case that concerned his transportation of a firearm across state lines. If he or his public transportation of the firearm were outside the scope of the Second Amendment, the court could have easily resolved the case on those grounds.
Simply put, there is nothing radical or activist about the U.S. Supreme Court now considering whether a person has a right to bear arms for self-defense under the Second Amendment.
What is radical is that any state would claim to have the authority effectively to abolish that right. Indeed, the vast majority of the states (42 out of 50, accounting for about 75% of the population) and even the District of Columbia make that right readily available, either through shall-issue licensing schemes or simply by withholding penalties for those engaging in it.
New York was determined to be an outlier, and it now may face the comeuppance it so richly deserves, one that may ironically liberate citizens who live in other restrictive states to again exercise their rights to bear.