In general, though, one law professor has concluded, “The lower courts have essentially made judicial restraint their guiding principle.” Given unclear instructions from the High Court and a long history of policymaking by legislators and law enforcement, that makes sense. Despite Heller’s historicist bluster, when it came to actually implementing the new rule, Stephen Breyer’s dissent proved more influential than Antonin Scalia’s majority opinion. Breyer said judges would have no choice but to weigh costs and benefits; that is just what has happened.
Those who hope courts will continue to defer to state legislatures in assessing gun laws cannot breathe easy yet, however.
One keen-eyed judge sees the trend and does not like it. Brett Kavanaugh is a well-networked conservative, sitting on the D.C. Circuit Court of Appeals. He came to national attention as an author of the salacious report on the Monica Lewinsky scandal as a deputy to Whitewater special prosecutor Kenneth Starr. (Kavanaugh’s defenders insist he urged Starr to remove the smutty passages.) Democrats delayed his confirmation for three years: he is bruited as a possible future Republican Supreme Court nominee. Kavanaugh was one of three appeals court judges who weighed the District of Columbia’s revised gun laws. After Heller, the District government had no choice but to rewrite its statute. Dick Heller again challenged it in court. The appeals decision upholding the new law was crafted by a panel of judges, in an opinion written by Douglas Ginsburg, himself a short-lived Supreme Court nominee proposed by Ronald Reagan in 1987. Kavanaugh dissented sharply. The two-part test constructed by judges across the country entirely misses the point of Heller, he wrote. “In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” The only proper thing to do is to scour the history of the Founding Era for analogies to current laws. If a match can be found to an earlier measure, then the law would be presumed constitutional. Also, judges should look to see if the guns in question are in common use, and have long-standing tradition. This approach travels in circles: a law can exist because it existed before. But what if an early American court was considering it back then? To those long ago judges, presumably, it would have been an impermissible outlier. That leaves little room for innovation, new criminal justice approaches, or responses to new threats. Kavanaugh insists his approach would not necessarily lead to looser gun laws. It would certainly lead to more amateur sleuthing by judges through the pages of history.
Kavanaugh’s dissent matters. Like a Tweet from a Fox News host, it augurs a conservative backlash against the judicial consensus about how to interpret gun rights. No doubt the Supreme Court’s conservatives took note. It reminds that this first wave of rulings—so far undisturbed by the justices—may not retain that status for long. When the high court next takes up the gun issue, we can expect to hear echoes of Kavanaugh’s dissent in the views of the Heller majority.
GUN CONTROL IN RETREAT
The determined public campaign by gun rights backers that changed constitutional doctrine continues to shift the political terrain as well.
In Congress and legislatures, gun control advocates had spent a decade in pell-mell retreat. In 1999, mass killings at a high school in Columbine, Colorado, renewed pressure on the firearms industry. A large protest urging gun safety laws gathered before the U.S. Capitol in a Million Mom March, though its energy dissipated quickly. Cities and states pressed in on the firearms industry, bringing lawsuits as they had against tobacco companies. In truth the political contest proved a mismatch. Gun control supporters were strategically scattered and organizationally weak. Key constituencies for stronger laws, such as police departments, found other priorities. More important, those who supported gun control may have had good intentions, but lacked passionate intensity. Few legislators feared losing a seat because they voted to back, not buck, the NRA. Gun rights supporters could mobilize when needed. In 1997, for example, manufacturers stood with President Bill Clinton in the White House as he praised their decision to ship trigger locks with every gun. Some firms prepared to settle lawsuits. When the venerable manufacturer Smith & Wesson reached a tentative agreement, NRA members boycotted its products. The company pulled out of talks.
Then George W. Bush took office. The assault weapons ban expired in 2004. Congress declined to renew it. The next year, Bush signed a law providing broad immunity from lawsuits for gun manufacturers and sellers. Manufacturers quietly began to provide substantial funding for the NRA. Around the country, trends were even more pronounced. In 1986, eight states had laws requiring authorities to issue permits to carry concealed weapons (called “shall issue” states); by 2013, thirty-seven did. The number of states where it was flatly illegal to carry a gun fell from sixteen to zero. In Florida, flanked by the head lobbyist for the NRA, Governor Jeb Bush signed the Stand Your Ground law in 2005. Increasingly the gun group focused on state legislatures, which could preempt antigun ordinances or laws enacted by cities.
Pro-gun activists continued to wage a long game to pursue constitutional change. Increasingly the NRA focused on federal judicial nominations. Before 2009, the organization had never counted a vote for or against a Supreme Court nominee toward the “score” it keeps of pro-gun votes. It had little reason to oppose Sonia Sotomayor, who had never ruled on any major Second Amendment issues, when President Obama nominated her for the High Court. Senate minority leader Mitch McConnell, hoping to hold down Sotomayor’s margin, asked the NRA to “score” the vote, as a favor to the Republican leadership. Lawmakers seeking a perfect NRA grade would have to vote no. The group did so again opposing the nomination of Elena Kagan the next year. As a result, each jurist received just a handful of Republican votes. Kagan recalls her private meetings with senators as they considered her nomination. Repeatedly they asked about her view of the Second Amendment. “But because you don’t say anything about your views on anything, when they ask you well, they’ll try to figure out what your views on the Second Amendment are likely to be and they’ll say, ‘Well, have you ever held a gun? Have you ever gone hunting? Do you know anybody who’s gone hunting?’ ” (Finally, Kagan promised that if confirmed, she would join Antonin Scalia on a hunting trip. Now Justice Kagan, she later confirmed to an Aspen audience, “I shot myself a deer.”)
Gun rights activists pressed for change in state constitutions and courts, as well. Forty states already had gun rights provisions mirroring the Second Amendment in their constitutions. In 2012 legislators in eight states introduced near-identical proposals to apply “strict scrutiny” to laws that might impinge on gun rights. Louisiana moved first. Voters overwhelmingly voted to change their state’s charter. It now read, “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.” The key words are “fundamental” and “strict scrutiny.” These legalistic phrases have a profound impact. Without them, criminal laws relating to guns were previously presumed constitutional if they rationally sought to “protect the public safety.” Now Louisiana judges are allowed to uphold gun laws only if they meet the most exacting standard: the state must prove the law protected a “compelling government interest,” be narrowly tailored to do only that, and be the “least restrictive” way to achieve its goal. Many otherwise sensible laws would fall. This was a boon for criminal defendants as well as gun rights advocates. The Orleans Parish public defender office, representing poor residents in the Crescent City, challenged a half dozen convictions. Twenty-year-old Glen Draughter had been convicted of burglary. Police arrested him and others driving with a loaded AK-47 and magazine clip in the trunk, a .40 caliber Smith & Wesson pistol in the backseat. A judge overturned Draughter’s conviction on the grounds that his fundamental right to “keep and bear arms” had been infringed. This was likely the first of many such rulings as cases swamped the courts. Constitutional claims now rang loudly. Louisiana’s childr
en accidentally are shot to death at three times the national average. A proposed law to require guns to be stored safely at home died in committee, opposed because it would infringe constitutional gun rights.
Once we realize that gun ownership is now deemed a constitutionally protected, legal right, we cannot know how it may unspool over time. Legislatures cannot deny someone their First Amendment right to speak, just because they have committed a violent crime. The clear evidence that the Framers accepted limits on gun ownership by dangerous people only goes so far. In Iowa, in 2013, disability advocates argued that legally blind people should be able to carry loaded weapons. Otherwise, their Second Amendment rights were at risk. If a right is deemed fundamental, as in Louisiana, it will prove harder to deny it when an individual has not been found guilty of a crime. A court restraining order intended to keep a man from harming his ex-wife, for example, might not be enough to overcome a “fundamental” right.
“THE WORST DAY”
In his first four years as president, Barack Obama barely mentioned gun control. He proposed no new restrictions. In fact, he signed only laws to make it easier to bring a gun into a national park or onto an Amtrak train. In the summer of 2012, in Aurora, Colorado, a gunman slipped into a midnight showing of The Dark Knight Rises, the new Batman movie. He set off smoke grenades and fired into the theater with guns including an assault rifle with a one-hundred-round drum magazine. Eighty-two people were shot; twelve died. Obama’s press secretary insisted there would be no new gun moves from the president, referring to “existing law” three times in one media briefing. That did not stop the NRA: executive vice president Wayne LaPierre warned of a “conspiracy to ensure re-election by lulling gun owners to sleep.” “All that first term lip service to gun owners,” he insisted, “is just part of a massive Obama conspiracy to deceive voters and hide his true intentions to destroy the Second Amendment during his second term.”
One month after the election, on a Friday morning, word came of the carnage at Newtown. By noon Obama spoke with Governor Dan Malloy of Connecticut. This was the worst day of his presidency, he said, and much would change. “It’s the first time that I cried in the Oval Office,” he reported to longtime aide David Axelrod. Obama spoke at the memorial service for the schoolchildren and their heroic teachers. Citizens in recent decades expect their president to reach out during tragedy. Obama had spoken at his share of funerals and disaster sites. Usually the president stuck to platitudes. This time, he vowed action. “We will be told that the causes of such violence are complex, and that is true. No single law—no set of laws can eliminate evil from the world, or prevent every senseless act of violence in our society. But that can’t be an excuse for inaction. Surely, we can do better than this.”
For the first time in fourteen years, a White House sought to lead national action to curb gun violence. Vice President Joseph Biden had presided over enactment of the Brady Bill and assault weapons ban in the 1990s as chair of the U.S. Senate Judiciary Committee. Obama assigned him to cull a menu of actions. One month after the shooting, Biden’s task force reported its recommendations. Most of the steps it urged were constitutionally unassailable, or at least posed no problems for even the most die-hard Second Amendment adherent. Other recommendations seemed noncontroversial, though in fact they did provoke diatribes against “gun grabbers.” Obama wanted to invest more money in research on gun violence, seemingly a goal without controversy. In fact, this would reverse the policy of gagging research at the Centers for Disease Control.
Some seemed gimmicky. For example, the Biden task force recommended an increase in mandatory minimum sentences for gun crimes. Tough talk: why wouldn’t lengthier sentences lead to fewer gun crimes? But evidence is debatable at best that putting people in prison for longer times reduces violent crime, as opposed to sure and swift punishment. And such an approach risks repeating errors made early in the “war on drugs.” Criminal lawmaking is especially susceptible to good intentions marred by dangerous and unintended consequences. Unthinkingly piling up one long sentence after another has led to an explosive growth in the incarcerated population, so that the United States—with 5 percent of the world’s population—now has 25 percent of its prisoners.
Other proposals required congressional action. President Obama plunged forward to urge legislation. The move suggested a new political calculus. Obama clearly felt liberated by his reelection, and perhaps a bit guilty over his previous silence. Still, it was the first time in years that national Democrats had approached the gun issue. A generation of political leaders and operatives saw gun control as a sign of cultural alienation from rural and moderate voters. It was not worth taking on, they thought, and any legislative push was destined for defeat anyway. Now the issue was joined again. For the first time in over a decade, Congress considered legislation to tighten, not weaken, federal gun laws. Plainly these would implicate the newly found constitutional right.
One proposal seemed constitutionally ironclad. Current law requires that gun purchasers undergo an instant computerized background check. Some two million purchases have been stopped. But weapons bought at gun shows or sold by private parties generally are not covered. Legislation brought to the floor of the U.S. Senate would have expanded the system to include gun shows. Here there was a ready historical analogy, the favored mode of argument: the Framers prohibited dangerous people from having guns. The NRA once had supported background checks, partly as an alternative to longer waiting periods or gun bans. In the spring of 2013, expanded checks were supported by upward of 90 percent of the public. When Republican Pat Toomey of Pennsylvania and Democrat Joe Manchin III of West Virginia brought a compromise to the floor, a majority backed it. This time the NRA threw its weight against it, and it was blocked by a filibuster. Arguments over red tape and practicality dominated. Foes were less eager to wield the Second Amendment as a talisman.
More controversial was the proposal to reinstate the assault weapons ban, and expand it to include high-capacity magazines. “Assault weapon” is an imprecise term. A semiautomatic weapon does not need to be reloaded each time it is fired. (As opposed to a machine gun, which allows the shooter to fire continuously just by holding down the trigger.) High-capacity magazines, holding dozens of rounds at a time, enabled mass killers to shoot without having to stop and reload. The AR-15, a military-style weapon similar to the M-4 and M-16 rifles used by the United States Army since Vietnam, has become one of the country’s favorites. A previous version of the ban had expired; it had shown limited impact on gun crime. As a political and policy matter, the attention given to the assault weapons ban was a strategic blunder, since it was always utterly unlikely to pass Congress. Jurisprudential issues remained pertinent, though, since two ambitious governors—Andrew Cuomo in New York and John Hickenlooper in Colorado—were pressing forward to enact similar measures.
Would a renewed ban on these weapons pass constitutional muster? A Senate Judiciary Committee hearing boiled over.
Ted Cruz was the newly elected senator from Texas. As the state’s solicitor general, he had appeared frequently before the U.S. Supreme Court. He had even argued part of Heller in a lower court on behalf of Texas and other states. Now he was in his third month in the Senate. He turned to Dianne Feinstein, the longtime senator from California. In 1979, she had become mayor of San Francisco after she discovered the body of her murdered predecessor, George Moscone, along with that of Supervisor Harvey Milk.
“It seems to me that all of us should begin with our foundational document of the Constitution,” Cruz began. She agreed.
He continued his interrogation in the mock formal language of the Senate. The Second Amendment used the phrase “the right of the people,” as had the First and Fourth. “Would she deem it consistent with the Bill of Rights for Congress to engage in the same endeavor that we are contemplating doing with the Second Amendment in the context of the First or Fourth Amendment? Namely, would she consider it constitutional for Congress to specify that th
e First Amendment shall apply only to the following books and shall not apply to the books that Congress has deemed outside the protection of the Bill of Rights? Likewise, would she think that the Fourth Amendment’s protection against searches and seizures could properly apply only to the following specified individuals and not to the individuals that Congress has deemed outside the protection of the Bill of Rights?” Cruz picked up a cardboard coffee cup and drank deeply.
Feinstein leaned in and glared. “I’m not a sixth grader.
“Senator, I’ve been on this committee for 20 years. I was a mayor for nine years. I walked in, I saw people shot. I’ve looked at bodies that have been shot with these weapons. I’ve seen the bullets that implode. In Sandy Hook, youngsters were dismembered. Look, there are other weapons. I’m not a lawyer, but after 20 years I’ve been up close and personal to the Constitution. I have great respect for it. This doesn’t mean weapons of war, and the Heller decision clearly points out three exceptions, two of which are pertinent here. You know, it’s fine you want to lecture me on the Constitution. I appreciate it. Just know I’ve been here for a long time. I’ve passed on a number of bills. I’ve studied the Constitution myself. I am reasonably well educated, and I thank you for the lecture.”
The theatrical encounter crystallized the constitutional concern. Progressive pundits recoiled at Cruz’s sneer, his lack of deference to an older colleague, his oversimplification. Conservatives crowed Feinstein had been hit by a “Cruz missile.” But was Cruz wrong?
To be sure, he engaged in demagogy when he implied the First and Fourth Amendments have no limitations. As a constitutional litigator, he knew better. We cherish free speech but ban child pornography. No law could prohibit one book and allow another—unless the barred book was flammable and prone to explode in bookstores. The Fourth Amendment applies to all people—but there are emergency exceptions. Cruz acknowledged that Heller allowed limits for guns not in “common use.” But assault weapons, well, they were everywhere. “I would suggest on any measure, four million weapons qualifies as in common use. And so under the terms of Heller, they cannot constitutionally be prohibited.” Four million assault weapons are enough to equip a medium-sized army. On the other hand, they make up a tiny percentage of the hundreds of millions of American guns in circulation. The entire exercise shows the absurdity of measuring constitutionality by market share. It also displays the constitutional hall of mirrors engendered by Scalia’s selective originalism. After all, an assault weapon is precisely the kind of armament a modern-day Minute Man might want to use. Now that right, rooted in military obligation, is untethered to actual military service. Does that make an assault weapon less protected, or more?
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