Gun law and policy dominated much of this past week’s news. While the President expressed interest in supporting new measures, he also returned to some of the more extreme gun rights rhetoric that we saw during the campaign. Meanwhile, little-noticed, another Second Amendment voice emerged.
During the presidential campaign, then-candidate Trump took positions on gun rights that call into question the reliability of his views (his campaign website links to gun policy are now gone, but see the contemporaneous reporting here and here). He apparently believed that “law-abiding people should be able to own the firearm of their choice. The government has no business dictating what types of firearms good, honest people are allowed to own.” Although he asserted that current laws should be enforced, he also objected to gun bans. I covered this ground during the campaign, noting the incoherence of his position.
The President announced this week that he has directed the Attorney General to craft regulations making bump fire stocks unlawful. Set aside for the moment that a President who has boasted about undoing the regulatory state is now pushing new regulations (rather than legislation, which he could recommend). The idea appears to be based on the proposition that the accessory functionally turns a semiautomatic weapon into an automatic one (a “machine gun”), and thus into a weapon that is already banned. See 18 U.S.C. 922(o). Whether done through new legislation or a new regulation, effectively, the President is now supporting a ban on a specific type of firearm, which differs markedly from the line that he peddled during the campaign.
The President also stated this week that he was open to legislation expanding background checks for firearms purchases (NYT coverage here). During the campaign, as reported, Trump criticized efforts to expand background checks, saying that we should not expand a broken system and even promising to undo President Obama’s executive action on background checks (see here). Perhaps his tepidly-expressed support this week will depend upon the specifics of forthcoming legislation. But the real test of the President’s mettle on this issue will come when he is asked to back a measure that the NRA does not support.
Finally, he endorsed the idea of arming school teachers and staff (see WaPo here). This idea may be worthy of consideration, but it is not a gun restriction. It will not reduce the number of guns available, nor would it likely deter many school shooters (e.g., those who expect, even hope, to be killed during their attack). Moreover, whatever the merits of the idea with respect to school safety (and there are some), it is hard to see how this idea would protect Americans from gun violence in places that are not schools, or how it will help to curb gun trafficking, or gun crimes committed by street gangs or other criminal organizations that regularly employ and stockpile firearms, including military-style weaponry.
Another strong gun-rights view, however, appeared this week and was largely ignored. Earlier in the week, Justice Thomas issued an opinion dissenting from the denial of certiorari in Silvester v. Becerra, a Second Amendment case involving the constitutionality of California’s 10-day waiting period for existing gun owners. Repeating assertions he has made in earlier cases, Justice Thomas lamented the Court’s treatment of the Second Amendment, referring to it as a “disfavored right” and a “constitutional orphan.” He correctly noted that the Court has not heard argument in a Second Amendment case in eight years, and has not granted a case assessing the constitutionality of a gun law in 10 years (since D.C. v. Heller).
Obviously, Justice Thomas’s several pleas to this effect have not persuaded the Court. In fact, I wonder whether recent events will further dampen the likelihood that the Court will show interest in reviewing gun restrictions in the near future. But his observations demand attention. After all, it only takes four votes to grant. So the question now is: will the Chief Justice and Justices Thomas, Alito, and Gorsuch ever agree on taking a new Second Amendment case? What’s holding them back?
Since Heller, gun rights have become significantly liberalized in many states. The practical effect of liberalization is that, even if courts restrict Second Amendment rights, the states remain free to keep gun rights broader than they would be pursuant to the Second Amendment. Of course, Congress could mitigate some of this liberalization with federal legislation. The most meaningful fights over gun rights therefore may not be found in Second Amendment litigation in the courts, important though that litigation may be. Rather, the most meaningful battles may well be in Congress and in legislative bodies around the country that have seen fit to liberalize gun rights. Still, close and pervasive gun regulation exists in America, and it is that regulation that is the subject of so many Second Amendment challenges. Problem is, is this the right time for the Court to consider striking down gun regulations?
The mere fact of a political battle over individual rights does not necessarily mean that courts will stay on the sidelines (consider, for example, the same-sex marriage issue). And rights are meant to be safe from the whims of political majorities. Still, for now, perhaps the Court is content to leave its substantive Second Amendment jurisprudence where it stands after Heller, and leave the remainder to the political process, state constitutional law, and federal courts. But if that is true, would it not prove Justice Thomas’s point?
One of Heller’s virtues was its recognition that Second Amendment rights are not unlimited; that a Nation devoted to the possession of guns for lawful self-defense and defense of others can also be a Nation where those same guns are sensibly regulated. Imagine that, rather than avoiding the matter, the Court granted multiple Second Amendment cases and simply read Heller narrowly, clarifying the standard of review and applying it to protect most gun regulation. That may not please Justice Thomas, and it would certainly result in amplified calls from some gun-rights advocates for appointment of “pro-gun” judges. But a more fully developed Second Amendment jurisprudence could be helpful to the ongoing political debate about gun rights by clarifying the scope of the Constitution’s protection.
Indeed, a more fully developed Second Amendment case law could (depending upon its direction) have the effect of making absolutist Second Amendment rhetoric even less acceptable, pushing extreme gun rights talk further into the fringe and easing the legal path for sensible new criminal laws to prevent and punish gun violence. That result would prove even more powerful if it came from the Court’s conservatives. And for his part, the President could abandon his own loose rhetoric and return conservatism to its more natural place of balance, away from the extreme: that is, a decent respect for the tradition of gun rights tempered with a recognition that sensible gun regulation bears an important relationship to controlling crime and violence.