Sunday, November 25, 2018

The Second(-Class) Amendment

Rick Wilking/Reuters
The Supreme Court should put gun rights on the same level as other constitutional requirements.
If liberals should fear the great contradiction between the Constitution’s text and their elevation of an unenumerated right to privacy (as we argued in our last article), conservatives must confront the same challenge with gun ownership. Despite the text of the Second Amendment, supporters of a right to bear arms have rooted their arguments in a murky pre-constitutional right to self-defense. As a result, the Supreme Court has shied away from halting the spread of federal and state schemes for gun control, for which the cries will only rise higher after the recent mass shootings. Unless the new conservative majority on the Court, solidified by Justice Brett Kavanaugh’s arrival, places the right to bear arms on a par with the rest of the Bill of Rights, the coming blue wave of gun-control proposals may swamp what the Framers considered a core constitutional right.
Recent tragedies in Pittsburgh, Pa., and Thousand Oaks, Calif., have renewed the calls for tighter gun control that arose after school shootings in Florida and Connecticut and the attack on concertgoers in Las Vegas. Representative Nancy Pelosi (D., Calif.), the likely next speaker of the House, and the new Democratic-controlled House of Representatives will make a priority of enacting what Pelosi calls “common-sense background checks to prevent guns going into the wrong hands.” Others potential proposals include a ban on semi-automatic and automatic rifles and handguns, limits on sophisticated ammunition and high-capacity magazines, and tougher qualifications for those allowed to purchase weapons. Longer waiting periods before a purchase and limits on public or concealed carrying of weapons might also reach the floor of Congress. House Democrats seem certain to pursue these and other gun-control ideas because of their success in the midterm elections in defeating Republican candidates who had received National Rifle Association support.
These proposals might have a chance, because the Supreme Court has gone missing in action on the Second Amendment. Besides interpreting the Constitution and other federal laws, the Supreme Court plays a primary role in policing the lower courts, where virtually all of the nation’s cases reach final decision. The U.S. Courts of Appeal decide nearly 60,000 cases each year, and the state judicial systems adjudicate an order of magnitude more. The Supreme Court generally hears about 60 cases a year, or about 0.1 percent of the appeals courts’ total. As the late Ninth Circuit judge Stephen Reinhardt once bragged about the Supreme Court’s inability to control his liberal outcomes: “They can’t catch them all.”
On the Second Amendment, the Supreme Court hasn’t been catching any. Since 2010, the Supreme Court has repeatedly ducked questions about gun rights. This is not how the Court traditionally operates. Once it clarifies a constitutional right (which in the past has included inventing one), the Court usually hears a stream of cases in the following years to flesh out the right and ensure that lower courts advance its decision properly. After the Supreme Court struck down racial segregation in Brown v. Board of Education, for instance, it took more than two decades for the Court to finish applying the decision to other institutions beyond public schools and to articulate principles to guide the remedy. The lower courts and resistant states took years to get the message.
Read the rest from John Yoo & James C. Phillips HERE.

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