What does Trump really believe about gun rights?

As Donald Trump continues to demonstrate his predictable weakness as a presidential candidate, and as he becomes increasingly dogged by abysmal numbers in nationwide and swing state polls, he further confirmed his weaknesses and the claims of his critics yesterday with his remarks about Hillary Clinton, judicial appointments, and the power of the “Second Amendment people.”  Politico story here.  But in spite of all of the (legitimate) furor over these remarks, and others, Trump has actually received a pass from journalists and others on the substance of the Second Amendment.

People like me have tried to show that Trump is weak as a constitutionalist (which is to say, he is not one).  And yet the one provision of the Constitution that he mentions with some regularity is the Second Amendment.  Indeed, yesterday’s incident arose precisely in the context of Trump attempting to persuade the crowd that Clinton’s judicial appointments would be hostile to Second Amendment rights.  So the question necessarily arises: what are Trump’s views on the scope of those rights?  Just how strong of a defender of the Amendment is he?  What, if any, gun controls would he support?  Unfortunately, like all of his other views, it seems, his views on the Second Amendment are utterly incoherent – the stuff of sloganeering and bluster, but unaccompanied by much in the way of substance.  And yet no one seems interested in asking him precisely about his views, as a way of clarifying them, if nothing else.  If Second Amendment rights are as important as he seems to think, should we not have a better understanding of his views on this subject?

Because the Supreme Court held in Heller that the Second Amendment protects an individual right to keep and bear arms for purposes of defensive confrontation, only the Supreme Court could reverse that decision and interpret the Second Amendment in some more limited fashion (e.g., that it only protects rights to keep and bear arms when connected to militia service).  And in order to do that, a case would need to arise in which some gun restriction was challenged as violating the Second Amendment.  Now, there are plenty of those kinds of cases out there, though the current Supreme Court seems mostly uninterested in them.  But this raises the question: how would Trump himself – much less his appointees – view the constitutionality of the gun law that would be at issue in such a case?  In order to know that – and the answer to that question could well inform his choice of judges – we would need to know more about how broadly, or narrowly, he views the Second Amendment.  He has never told us, though he claims to be “strong” on the Second Amendment.  In other words, how different really are Trump’s views on gun rights from those of Clinton, and how different would their judicial appointees be on these questions?

For example, does Trump believe that background checks are unconstitutional?  Does he believe that felons and the mentally ill should have Second Amendment rights to keep and bear arms (Heller says they do not: does he agree?)?  What about unlawful drug users?  What about service members who have been dishonorably discharged?  What about persons with misdemeanor convictions for domestic violence?  See Voisine v. United States (Thomas, J., dissenting).  Does he believe that it should be illegal to possess a firearm with an obliterated serial number, or is that unconstitutional?  Does Trump believe that the Second Amendment protects the right of a minor to possess a handgun?

His website demonstrates the incoherence of his views.  There, he claims what at first appears to be a remarkably broad understanding of the Second Amendment, and yet he says we must “enforce the laws on the books.”  What does that mean?  Are none of the “laws on the books” a violation of Second Amendment rights?  If he is willing to “enforce the laws on the books” – there are many – does that not mean that he supports substantial gun controls?  And how, if he does, would that go over with the “Second Amendment people” to whom he regularly panders?  His site also claims that gun and magazine bans are ineffective.  But are they unconstitutional?  What about the federal machine gun ban?

It turns out, these are critical questions for any presidential candidate who claims a belief in expansive Second Amendment rights.  That is because these questions each refer to federal gun laws that the president has the obligation to enforce – unless, of course, they are unconstitutional.  So Trump has a dilemma: if he believes that these laws violate the Second Amendment, surely he must refuse to enforce them and appoint judges who would strike them down, if challenged.  And yet, the president also must appoint the Attorney General, the Deputy Attorney General, the Assistant Attorney General for the Criminal Division, and the various United States Attorneys – all of whom play a role in the enforcement of these very federal gun laws.  So, will Trump’s law enforcement appointees enforce these gun laws (after all, he is the candidate of Law and Order, don’t you know), or will he only appoint people who will refuse to enforce them, on his orders, because the laws violate the Second Amendment?  Will he only appoint judges who declare their view that these federal gun control laws are unconstitutional?

Trump, and groups like the NRA, have tried to make gun rights an issue in the campaign.  (The NRA has this new ad up accusing Clinton of hypocrisy because she is surrounded by armed guards; it’s not clear how that makes her a gun rights hypocrite, as her Secret Service protection is a function of federal law.  Such an ad would make sense if, for example, Clinton acknowledged that she privately possessed a gun for self-protection but opposed allowing others to do so; that would be hypocrisy.  But that is not the NRA’s claim.).  Such a focus might have been useful in the primaries.  But in the general election, how does Trump benefit from an appeal to those with the broadest view of gun rights?  My sense is that those voters are already with Trump and highly unlikely to support Clinton.  He gains nothing electorally by clinging to a near absolutist position on gun rights.  If Trump wants to expand his support, he would be better served by appealing to those who support some gun controls.  But one of Trump’s major mistakes this summer has been assuming that the primaries and the general are indistinguishable.  Perhaps he believes that any expression of support for gun control will jeopardize his position with the most ardent defenders of gun rights in his base – even though he professes a desire to “enforce the laws on the books.”  Hence the incoherence.

Many are penning the first drafts of the Trump campaign’s obituary.  It is easy to see why.  I would be cautious, though.  For all of the pathetic whining that his campaign does about the media, it is hard to imagine a candidate who has ever benefited from media coverage the way that Trump has.  He is where he is today because of the media.  And the media, again, has given him a pass on so many problematic subjects, including his views on gun control and gun rights.  Three months is an eternity in politics, Clinton remains vulnerable, and it is not inconceivable that Trump could close the gap before the debates (more on that later).  So Trump’s electoral problems, while deeply serious now, may not yet be insoluble.  But his knowledge and preparedness problems almost certainly are.

 

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