Second Amendment gets Second-Class Treatment

posted on February 9, 2018

Among those who remain frustrated by Americans’ continuing distaste for harsh, European-style gun control, a favorite point of complaint is that the Second Amendment is more vigorously and consistently enforced than are all the others, and that this supposed disparity isn’t fair. Writing recently in The Atlantic, David Frum lamented that the right to keep and bear arms was on a jurisprudential par with “free speech and peaceful assembly,” and then proposed that “in actual practice” it is “often a more fundamental right.” This claim is routinely echoed across the internet, with terms such as “extreme,” “absolute,” and “uncompromising” being thrown around with particular abandon. A popular meme on social media captures the idea well. “I wish,” it reads, “that abortion were regulated in the same way as are firearms”—the implication, naturally, being that firearms are not regulated at all. Where, critics ask, are the limits?

This talking point is an extraordinarily irritating one, for, far from being set apart for special treatment, the Second Amendment is in fact the least enforced provision within the entire Bill of Rights—and, arguably, within the entire Constitution. During the last decade, Congress has generally declined to impose new federal gun regulations, but, at the same time, it has so far accomplished little to provide relief for the millions of Americans who live in states with vehemently anti-gun legislatures. Likewise, the Supreme Court seems to have run out of steam immediately after the 2010 McDonald v. Chicago decision. 2008’s D.C. vs. Heller was a crucial—and legally correct—step toward the restoration of the Second Amendment; McDonald, which applied Heller to the states, was more important still. And yet, because in practice the two rulings nixed only the most extreme provisions within the panoply of illegal gun control rules, they left a number of important questions unanswered. Almost a decade later, there remains a veritable raft of related law in dire need of fleshing out. Alas, the court has steadfastly refused to do that work, permitting the lower courts to run riot.

Frustrated by his colleagues’ peculiar reluctance to engage with cases involving guns, Justice Clarence Thomas has taken to issuing rare dissents from the frequent denials of certiorari, and to chastising his branch for its pernicious selectivity. “Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense,” Thomas has written, “lower courts, including the ones here, have failed to protect it.” This, he proposed, is unacceptable, for “Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document.” Indeed.

And yet in practice, they are less protected. Aware that the courts are slow at best and indifferent at worst, and cognizant, too, of the perennial gridlock in the Senate, a slew of American jurisdictions have gotten away with the most potent of infractions of the right to keep and bear arms. Washington, d.c.—which should be a model of constitutional fealty, but is in reality a rebel against the law—has routinely felt comfortable denying concealed-carry permits to all but the most politically well connected, though that was recently remedied by another court decision. New York City, the most populous metropolis in America, has made the process of acquiring a firearm almost impossible to navigate. Maryland has banned the most commonly owned rifle in the United States. New Jersey—never to be outdone—has become the poster child for suppression of every imaginable kind. Were the Second Amendment to be given the special treatment that the gun controllers believe it is—were, in other words, the Second Amendment to be treated as is, say, the First—these regulations would long ago have
been washed away. In fact, were the Second Amendment treated in the same way as is the First Amendment, even the generally non-controversial regulations on the acquisition, transfer and bearing of firearms would be obviated. As it is, the outliers remain, and their critics see little hope of relief.

For many, things are bound to get worse, not better. Chris Christie is nobody’s idea of a champion of gun rights, but, under his governorship that just ended, New Jersey has more or less held the line over the past eight years. The new governor, Phil Murphy, intends to change that dramatically. Per Murphy’s campaign website, the new administration will “start by signing every piece of gun violence prevention legislation that Governor Christie has vetoed”; “[require] all gun retailers to carry at least one smart gun once they are commercially available”; raise taxes on gun purchases; and add even more obstacles to the acquisition of firearms in a state in which it is already extremely difficult to legally obtain a gun. Can New Jersey descend even lower? Sure it can.

So, too, can California. Absurd as it may sound in a vacuum, gun owners in California might soon look back on Jerry Brown’s tenure as a relative golden age. If, as seems likely, Brown is replaced by a more zealous figure—Gavin Newsom springs to mind—the bills that Brown vetoed will soon make their way into the statute book. And when they do, California, which is already an outlier, will move even further away from the demands of the Bill of Rights.

These changes, it must be pointed out, will not represent a victory for “federalism” or for “states’ rights,” and are not “just democracy.” Nor are their opponents “hypocrites” for objecting. Federalism and democracy are the backbones of the American system, and should be respected considerably more than they are at present. But where there is a conflict between federalism and democracy and the Bill of Rights, the Bill of Rights must invariably prevail.

Outside of the debate over gun control, this is an uncontroversial statement. It would be considered preposterous for a governor or state legislator to argue that, in the name of local control or of democracy, his state intended to establish a church, to limit trial by jury, or to shut down critical newspapers. So it should when he promises to undermine the Second Amendment, either for residents under his jurisdiction, or for American citizens who on occasion may enter it. That such infringements are not, in fact, met with the same outrage—and, indeed, that Congress and the courts let such transgressions fly—demonstrates nicely how fallacious the claim is that the Second Amendment is the most potent right of all, and how necessary engagement has become. Somehow, when the topic is guns, something always changes.

Thus it is that Americans who live near state lines are often unable to carry for fear of crossing into a neighboring territory and losing their rights completely. Thus it is that the most commonly purchased firearm in America—a weapon that clearly falls under the “in common use” standard laid out in Heller—is prohibited in a handful of states. Thus it is that an unresolved circuit split on the question of concealed carry has made the issuance of permits a crapshoot. Effectively, one’s access to the right to keep and bear arms depends largely on where one lives. If you’re in Arizona, you’re set. If you’re in California, you’re in trouble. There are, in practice, parts of America that are Constitution-free zones. This, once again, is by no means the product of a thriving federalist system, but of certain states bucking the core rules which ostensibly govern all people and jurisdictions, and getting away with it.

Ideally, the Supreme Court would intervene regularly, as it does on behalf of other parts of the constitutional order. Most pressing on that docket are the questions surrounding the legality of “may-issue” concealed carry, and of the 4th Circuit’s upholding of Maryland’s AR-15 ban. But if it doesn’t step up to the plate—if, in other words, Thomas is to remain frustrated for the foreseeable future—Congress can help to fill the void.

If the Second Amendment is to be set back upon the pedestal that hosts the remainder of the Bill of Rights, it will require a national engagement that
has, thus far, been at best spotty and at worst missing completely.

The most obvious next step is for Congress to require that each state respect carry permits that have been issued by another. Such a law would bring to an end the present arrangement—in which Americans are routinely denied a right guaranteed by the federal Constitution simply because they move between localities—and thereby ensure that the Second Amendment is treated similarly to the First, Third, Fourth, Fifth and so forth. It would be unheard of for an American to cross over into a neighboring state and have no way of accessing his right to speak, to petition or to engage in journalism. Indeed, in such an instance, he would reasonably be expected to say, “Civis Americanus sum,” and to bring merry hell down upon the authorities. If Congress engages, as it must, it will provide Americans with that power.

The purpose of any such measure—one of which has already passed the House and is now under consideration in the Senate—would be to protect law-abiding citizens whose only “crime” has been to move to another physical location within their country of citizenship, and to assume they’d be protected there by the Constitution. Recently, both Shaneen Allen and Melroy Cort made headlines for doing precisely this, and for being threatened with life-destroying punishments as a result. Ultimately, both were released—Allen by a pardon, and Cort, in part, by a jury acquittal—but only after they had suffered considerable financial, personal and professional harm. Ensuring that nobody else meets the same fate should be a top legislative priority.

Alas, we are seeing predictable pushback from within the Democrat party. When the House reciprocity bill passed easily in December, U.S. Rep. Nancy Pelosi, d-Calif., took to the rooftops to lie about its effects and to complain that it was “extreme.” Would that she had read her history—in particular, the history surrounding the constitutional provision that enables Congress to intervene. As is abundantly clear from the debates surrounding the passage of the 14th Amendment, both its author, John Bingham, and its principal sponsor, Jacob Howard, regarded gun ownership as a fundamental civil right that needed national protection against inevitable local subversion. Attempts to limit fundamental rights by location, Bingham wrote, would turn the Constitution’s “sublime and beautiful scripture” into a “horrid charter of wrong.” “The privileges and immunities of citizens of a State,” he added, “are chiefly defined in the first eight amendments to the constitution of the United States.” The right to keep and bear arms sits happily among those eight. It now falls to the Senate to bring that right into line with the remaining seven.

That, ultimately, should be our aim. As Adam Liptak has observed in The New York Times, for a brief period in the middle of the 20th century, the Second Amendment was ignored and subverted by an establishment that preferred to read its own “political preferences” into its meaning, rather than to engage in “a serious consideration of the amendment’s text, history and place in the structure of the Constitution.” Or, as Sanford Levinson has more bluntly put it, for a number of years “the standard liberal position [was] that the Second Amendment is basically just read out of the Constitution.”

Now, happily, it is not—at least, not usually. Nevertheless, some of those bad habits have remained, and they are hobbling the completion of a long-overdue restoration. If the Second Amendment is to be set back upon the pedestal that hosts the remainder of the Bill of Rights, it will require a national engagement that has, thus far, been at best spotty and at worst missing completely. Here’s to the fray.

Charles C.W. Cooke is the editor of National Review Online.


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