Law & the Courts

Enforce the Second Amendment

A gun owner attends a rally in support of the Michigan Open Carry law in Romulus, Mich., in 2014. (Rebecca Cook/Reuters)
It’s time for Congress to act.

States controlled by the Democratic party have chosen to ignore an individual right protected by an amendment to the U.S. Constitution. Rights of millions of law-abiding Americans in those states have been routinely violated by Byzantine rules and prohibitions, and courts have turned a blind eye to those abuses. The U.S. Supreme Court could intervene, but instead it has chosen to leave unconstitutional laws on the books. Some prominent Democrats have called for repealing the amendment, and magazine articles have offered elaborate justifications.

If this sounds familiar, it happened after the Fifteenth Amendment was adopted in 1870 after the Civil War. That amendment said voting rights “shall not be denied or abridged” on the basis of race or color. Many southern states nevertheless found creative ways to disenfranchise racial minorities — abuses that were addressed by the civil-rights movement of the 1950s and the Voting Rights Act of 1965.

In today’s deeply divided America, many states dominated by Democrats have discovered equally creative ways to bypass, circumvent, or simply ignore the individual rights protected by the Second Amendment. Law-abiding residents of New York State must wait for up to a year for a license to possess a handgun in their homes. Connecticut restricts standard-capacity magazines. California’s laws are probably the most onerous: Residents are limited to handgun models that appear on a government-created approved list, advertisements for firearms are restricted, concealed carry is limited to those who can demonstrate “good cause” to the satisfaction of local law enforcement, and starting next year background checks will be required even for ammunition. Massachusetts, New Jersey, Delaware, and Maryland round out the list of coastal blue states that fail to protect the right of citizens to carry handguns for self-defense.

In theory, after the U.S. Supreme Court’s 2008 decision in Heller and its 2010 decision in McDonald, the Second Amendment was supposed to mean something. Certain policy choices for legislators were supposed to be taken off the table. The majority opinion in Heller, written by Justice Antonin Scalia, concluded by saying: “It is not the role of this Court to pronounce the Second Amendment extinct.” Yet many lower courts have been aiming for just that.

Two cases decided this month underscore how the Second Amendment has effectively been repealed in California. In one case, a federal district judge ruled against the National Rifle Association’s state affiliate, which had challenged onerous state rules targeting popular semiautomatic rifles. “Even an outright ban on certain types of semiautomatic weapons does not substantially burden the Second Amendment right,” wrote Judge Josephine Staton, an Obama appointee.

In a second case, the NRA affiliate had argued that California could not completely prohibit a resident from carrying a firearm for self-defense. That lawsuit was dismissed by Judge John Kronstadt, another Obama appointee. (If plaintiffs had somehow prevailed before the trial judges, the Ninth Circuit’s innovative legal minds could have been counted on to overturn any pro-gun outcome.)

Since McDonald eight years ago, the Supreme Court has not been helpful. In a recent California case, the Calguns Foundation and the Second Amendment Foundation challenged zoning laws in Alameda County aimed at regulating gun stores into non-existence. The Ninth Circuit sided with Alameda in 2017, saying that “no historical authority suggests that the Second Amendment protects an individual’s right to sell a firearm.” On May 15, the Supreme Court declined to hear the groups’ appeal, a move that leaves the Ninth Circuit’s decision intact — and will surely encourage other anti-gun politicians.

“If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene,” Justice Clarence Thomas wrote in a dissent from his colleagues’ decision not to intervene in February after the Ninth Circuit upheld another California anti-gun measure. “But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court. . . . The right to keep and bear arms is apparently this Court’s constitutional orphan.” Justice Neil Gorsuch joined Thomas in a separate dissent last year that made a similar point.

In the post–Civil War south, resistance to the Fifteenth Amendment was widespread — and, at times, unapologetic. Sen. Benjamin Tillman (D., S.C.) said in a Senate floor debate that “we made up our minds that the Fourteenth and Fifteenth amendments to the Constitution were themselves null and void.” In 1870, Rep. William Prosser (R., Tenn.) introduced a bill to enforce the Fifteenth Amendment; he said in a House floor debate that “the Democratic party is still unmistakably and unalterably opposed to all [the Reconstruction amendments], and more especially to the Fifteenth Amendment to the Constitution of the United States.” The North American Review, a literary magazine, published an article as late as 1908 calling for repeal. It argued that “the Fifteenth Amendment is the prolific source of race conflict and race prejudice” and that “the time has arrived when this repeal movement should be inaugurated.”

The solution to the southern Democrats’ abuses of power was the Voting Rights Act of 1965. It was enacted after litigation on a case-by-case basis proved insufficient to curtail Fifteenth Amendment violations: State legislatures became adept at replacing unconstitutional laws with new ones that had a similar effect. In response, the 1965 act prohibited states from adopting practices or procedures that deny or abridge Americans’ right to vote. Crucially, the authors of the act recognized that obstructionist states could be singled out for extra scrutiny. Politicians in those states were prohibited from making arbitrary changes to voting rules.

The same approach can remedy abuses by anti-gun states. The Second Amendment applies to the states via the Fourteenth Amendment, which allows Congress to police the actions of wayward states “by appropriate legislation.” It’s true that Congress is limited to remedying or preventing unconstitutional actions, as the Supreme Court stressed in a 1997 religious-freedom case. But even in that case, a majority of the justices said Congress “must have wide latitude” in enacting laws to protect constitutional rights “despite the burdens those measures placed on the States.”

A federal law could prohibit states from adopting practices or procedures that deny or abridge Americans’ Second Amendment rights, with obstructionist states singled out for extra scrutiny. The law should preempt unconstitutional state and local anti-gun laws, require concealed-carry reciprocity, and split up the Ninth Circuit (why should Idaho and Montana share a circuit with California and Hawaii?). Some of those proposals already have been advanced by advocacy groups including the Firearms Policy Coalition and the National Rifle Association.

If the courts continue to interpret Americans’ Second Amendment rights into a constitutional near-nullity, few reasonable alternatives remain.

Here’s another: Remember the reference to “militia” in the Second Amendment? Article I, Section 8 of the Constitution gives Congress authority over “organizing” and “disciplining” the militia, which federal law defines as “all able-bodied males at least 17 years of age and . . . under 45 years of age.” Congress can expand the definition of militia to include women, boost the upper age to 70 or higher, and perhaps raise the lower limit to 21 years of age. At the same time, it can create a federal license, granted after suitable training, for carrying concealed weapons nationwide.

Congress can also establish negative incentives. Don Kilmer, an attorney in San Jose, Calif., who litigated the Alameda gun-rights case, suggests that Congress change the default rules for Second Amendment litigation. Making it easier for gun-owning plaintiffs to secure attorneys fees and costs would align incentives in the right direction, he says: “If we can get plaintiffs’ lawyers on our side suing municipalities for onerous gun laws, that’s half the battle.”

A companion approach would be to establish a federal cause of action against local and state governments for failure to protect their citizens if the injury is proximately caused by an inability to exercise self-defense. “Imagine the discussions the local politicians will have with their risk managers about gun bans in parks and forest land from mountain lion attacks and two-legged predators,” Kilmer says. “Or the sheriff who gets sued when a carjacking goes wrong against someone who was denied a CCW.”

It’s easier to list what should be in a Gun Rights Act of 2018 than it is to enact it. But if the courts continue to interpret Americans’ Second Amendment rights into a constitutional near-nullity, few reasonable alternatives remain. Let’s just hope that, unlike the Fifteenth Amendment, it won’t take nearly a century to begin enforcing Heller.

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