The Supreme Court's Second Amendment Folly

 You may have seen this news item and thought it was some kind of joke. A Federal District Court in Texas, and then the Fifth Circuit Court of Appeals, ruled in Rahimi v. United States, that a Texas law prohibiting people subject to domestic violence protective orders from owning guns was unconstitutional. Why? Because no such prohibition was recognized when the Second Amendment to the Constitution protecting the right to “keep and bear arms” was enacted back in 1789 or, in 1868, when the Fourteenth Amendment applied federal constitutional rights to the states. After all, these were the bad ol’ days when there was no such thing as a domestic violence protective order. This court decision was the kind of absurd news item worthy of the Onion. But it was no joke.

The explanation for this bit of judicial nonsense is to be found in the Supreme Court’s decision last term, New York Rifle and Pistol Association v. Bruen. Back in 2008, on a 5-4 vote, the Court decided that the Second Amendment right was an individual right to self-defense, not merely the right of states to maintain militias. That case, District of Columbia v. Heller, acknowledged that some gun control measures would nonetheless be constitutional, but left unanswered the question of how their constitutionality would be determined. The federal courts of appeal after Heller devised their own two-step constitutional test that went something like this: First, the court would decide whether the gun-control measure infringed on the Second Amendment at all, using history to determine whether such gun-control measures were in practice at the time that the Second Amendment was adopted. Second, if it did infringe on an historically recognized Second Amendment right, then courts would employ a balancing test: Given the nature and extent of the intrusion on gun rights, was the government’s interest in protecting public safety sufficient to justify the law’s intrusion? Under this two-step test, the Fifth Circuit had previously upheld the constitutionality of a law prohibiting domestic violence perpetrators from owning guns.

In Bruen, the court threw out step two. The only question that needs answering, according to the majority opinion, is whether the gun control measure at issue has a sufficiently close historical analog to the laws in force at the time the Second Amendment was enacted. How close? The court didn’t make that clear. But the new method of constitutional reasoning that the court prescribed, based solely on history and historical analog, led directly to the preposterous decision that domestic violence abusers had the constitutional right to own guns.

Justice Thomas, writing for the court in Bruen, argued that we needed no such step two balancing test because the Second Amendment already incorporates a balance “struck by the traditions of the American people.”  But what does that mean? If you’re balancing the dangers posed by guns with the right to self-defense, then that balancing will look drastically different in 2023 than in 1789. The latter was a society in which most people lived in small towns or farms, there were no cities with a population greater than 35,000, there were no professional police forces, firearms required reloading with every shot, and the biggest dangers were from belligerent Indians and recalcitrant slaves.

To state the obvious, we live in a different world, one of epidemic gun violence in a highly urbanized society, where weapons load automatically, where every week brings news of mass shootings, and where gun violence – homicides and suicides – is the leading cause of death in children.

But even in bucolic early America, society was planted thick with laws controlling the use of guns. As UCLA Law Professor Adam Winkler recounts in his book “Gun Fight,” there were laws requiring guns to be given up to the authorities in times of war. Concerns with gunpowder igniting fires caused some jurisdiction to prohibit the storing of guns inside homes or other buildings. There were laws forbidding sale of guns to Indians or free Blacks. There were laws routinely requiring a town’s adult male populace to report with their guns to be inspected to see if they were in good working order. In the late nineteenth century, shortly after the passage of the Fourteenth Amendment, in the so-called wild West, frontier towns like Dodge City or Tombstone forbade gun possession within the town limits. The guns had to be left with the sheriff or in the outskirts of town with their horses. These measures resulted in surprisingly low murder rates, and researchers have concluded that “many more people have died in Hollywood westerns than on the real frontier.” (Winkler, p. 164

The lesson we can draw from this history is not a precise model of the kind of gun legislation we need today, but rather the general principle that gun rights were always embedded in a social and legal order that limited dangers posed by gun ownership. Indeed, the very wording of the Second Amendment, with its prefatory clause “a well-regulated militia, being necessary to the security of a free state,” preceding the declaration of the “right of the people to keep and bear arms” strongly suggests that the framers of the Second Amendment envisioned a version of gun rights that was consistent with, indeed subordinate to, public safety. But if we follow a strictly historical model much commonsense and widely supported legislation – background checks, keeping guns out of the hands of the mentally ill, licensing gun dealers, prohibiting ex-felons from buying firearms – all may be in constitutional jeopardy because none of these laws existed at the time of the Second Amendment’s adoption.

Democratically elected representatives have no greater responsibility than to keep their constituents safe. Perhaps the US Supreme Court will eventually overturn the Fifth Circuit’s decision protecting the gun rights of domestic violence abusers. It may clarify Bruen so as to make the decision more intelligible and more workable. But to have a court with clear ideological bias consult 18th and 19th century statute books to decide whether 21st century gun control laws will be allowed to stand is an appalling prospect and a usurpation of democratic self-government. Being clear that this is an unacceptable state of affairs is the first step to changing it.

Robert Katz served as a staff attorney and supervising attorney at the California Supreme Court from 1993-2018. Before that he was in private practice representing public agencies, and worked as a newspaper reporter covering local government in Santa Cruz County.

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