In 1803, the great jurist St. George Tucker laid out clearly what the American public should expect to do if Congress “were to pass a law prohibiting any person from bearing arms.” In such a circumstance, Tucker explained, “the judicial courts, under the construction of the words necessary and proper, here contended for, would be able to pronounce decidedly upon the constitutionality of these means.”
To modern Americans, this, perhaps, seems obvious. When the government denies us the unalienable rights that are protected in our Constitution, we take that government to court and, as the great legal scholar, William Rawle put it, we appeal to the U.S. Bill of Rights “as a restraint.” That, ultimately, is what judges are for. Governments are full of flawed men, and when those flawed men inevitably err and usurp and cheat, we demand that the judiciary step in to keep them in check. Simple.
At least, it’s simple in theory. In practice, it’s a little more complicated than that. Back in 1789, when James Madison introduced the Second Amendment, he listed it among a series of rights against which “no serious objection has been made by any class of our constituents.” But that, alas, is no longer unequivocally true. Among Americans, the right to keep and bear arms remains extremely popular. But among judges? That depends.
It is fair to say that there is now a near-perfect connection between judges who are appointed by politicians who respect the original meaning of the Constitution and judges who are willing to enforce the Second Amendment. The recent Bruen decision—in which the U.S. Supreme Court correctly struck down “proper-cause” requirements for concealed-carry applicants—made this as clear as it has ever been. The pro-Second Amendment justices in that case included Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett (who were all appointed by Donald Trump); and John Roberts and Samuel Alito (who were appointed by George W. Bush); and Clarence Thomas (appointed by George H. W. Bush). The anti-Second Amendment justices in that case were Sonia Sotomayor and Elena Kagan (who were appointed by Barack Obama); and now-retired Stephen Breyer (appointed by Bill Clinton). The conclusion we should draw from this tally is obvious: If we want the courts to affirm our right to keep and bear arms, we must choose politicians who will defend such courts.
For a while, the United States had a strong cadre of such politicians. Between 2015 (when the Republican Party took control of the U.S. Senate) and 2021 (when President Donald Trump left office), many of America’s courts were greatly improved with judges who would uphold the Constitution. This shift was most notable at the Supreme Court, to which President Donald Trump and Sen. Mitch McConnell worked together to appoint three new judges. But it also affected our circuit and district courts, to which Trump made a remarkable 228 appointments. Trump’s choices had a particularly strong effect on the Sixth Circuit, the Fifth Circuit and the Ninth Circuit, the lattermost of which had been a font of legal activism for decades.
Since this transition, these courts (and many others that Trump and McConnell changed) have served as an important bulwark against much of President Biden’s illegal gun-control agenda. The level of resistance to Heller and McDonald has been lower in recent years than it was prior to 2017. Judges have routinely blocked Biden’s extra-statutory orders pertaining to so-called “ghost guns,” to pistol braces and to bump stocks. And if, as he keeps threatening to do, Biden attempts to enact even stricter measures without Congress, the courts might block those, too.
But this state of affairs will not last forever. With the election of Joe Biden to the presidency and with a majority of gun-control supporters in the U.S. Senate, the number of judges who are flatly unwilling to uphold the law is growing once again—and fast. It is infuriating that it requires a constant political fight to keep the judiciary honest, but a constant political fight is exactly what it takes.
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