Editor’s Note: The following is the fourth in a series of articles in which Mr. Yoo and Mr. Phillips will lay out a course of constitutional restoration, pointing out areas where the Supreme Court has driven the Constitution off its rails and the ways the current Court can put it back on track. The first entry is available here, the second here, and the third here.
If liberals should fear the great contradiction between the Constitution’s text and their elevation of an unenumerated right to privacy (as we argued in our last article), conservatives must confront the same challenge with gun ownership. Despite the text of the Second Amendment, supporters of a right to bear arms have rooted their arguments in a murky pre-constitutional right to self-defense. As a result, the Supreme Court has shied away from halting the spread of federal and state schemes for gun control, for which the cries will only rise higher after the recent mass shootings. Unless the new conservative majority on the Court, solidified by Justice Brett Kavanaugh’s arrival, places the right to bear arms on a par with the rest of the Bill of Rights, the coming blue wave of gun-control proposals may swamp what the Framers considered a core constitutional right.
Recent tragedies in Pittsburgh, Pa., and Thousand Oaks, Calif., have renewed the calls for tighter gun control that arose after school shootings in Florida and Connecticut and the attack on concertgoers in Las Vegas. Representative Nancy Pelosi (D., Calif.), the likely next speaker of the House, and the new Democratic-controlled House of Representatives will make a priority of enacting what Pelosi calls “common-sense background checks to prevent guns going into the wrong hands.” Others potential proposals include a ban on semi-automatic and automatic rifles and handguns, limits on sophisticated ammunition and high-capacity magazines, and tougher qualifications for those allowed to purchase weapons. Longer waiting periods before a purchase and limits on public or concealed carrying of weapons might also reach the floor of Congress. House Democrats seem certain to pursue these and other gun-control ideas because of their success in the midterm elections in defeating Republican candidates who had received National Rifle Association support.
These proposals might have a chance, because the Supreme Court has gone missing in action on the Second Amendment. Besides interpreting the Constitution and other federal laws, the Supreme Court plays a primary role in policing the lower courts, where virtually all of the nation’s cases reach final decision. The U.S. Courts of Appeal decide nearly 60,000 cases each year, and the state judicial systems adjudicate an order of magnitude more. The Supreme Court generally hears about 60 cases a year, or about 0.1 percent of the appeals courts’ total. As the late Ninth Circuit judge Stephen Reinhardt once bragged about the Supreme Court’s inability to control his liberal outcomes: “They can’t catch them all.”
On the Second Amendment, the Supreme Court hasn’t been catching any. Since 2010, the Supreme Court has repeatedly ducked questions about gun rights. This is not how the Court traditionally operates. Once it clarifies a constitutional right (which in the past has included inventing one), the Court usually hears a stream of cases in the following years to flesh out the right and ensure that lower courts advance its decision properly. After the Supreme Court struck down racial segregation in Brown v. Board of Education, for instance, it took more than two decades for the Court to finish applying the decision to other institutions beyond public schools and to articulate principles to guide the remedy. The lower courts and resistant states took years to get the message.
But the Court has not followed that pattern with gun possession. After determining, for the first time in its 200-year history, that the Second Amendment recognizes an individual right to bear arms in District of Columbia v. Heller (2008), and applying the right against state governments in McDonald v. City of Chicago (2010), the Court has refused to hear another gun-control case. It has so far refused to address state limits on permits to carry concealed weapons; bans on certain types of guns, ammunition, and magazines; and expanded background checks. In a series of dissents from these denials of certiorari (the writ whereby the Court grants review of a case), Justice Clarence Thomas has lamented the Court’s unwillingness to stand up for its Second Amendment precedents in the face of resistance from some lower courts and state governments alike. “The lower courts are resisting this court’s [Second Amendment] decisions,” Justice Thomas wrote earlier this year, “and are failing to enforce the Second Amendment to the same extent that they protect other constitutional rights.” He further observed, “If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.” Justices Alito and Gorsuch have joined Justice Thomas’s objection.
This reluctance may stem from the tentative nature of the Court’s own precedents, which Justice Kavanaugh and the new conservative Court majority can bolster. The Second Amendment’s text declares: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In District of Columbia v. Heller, a majority of the justices, with Justice Scalia writing, had to address a text that seems to protect a collective right of the people to bear arms only insofar as necessary to maintain a militia. Critics of the individual-rights reading argued that “well regulated” clearly gave state governments the authority to limit ownership to guns necessary for organizing a militia, or even ban them outright for individual ownership.
To respond to this reading of the text as creating only a state right to a militia, Justice Scalia had to link the Second Amendment to a preexisting, individual right of self-defense. The Court found that even before the Constitution and the Bill of Rights, the Founders believed that the people had a natural right to self-defense. As Justice Scalia found, “the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” The Second Amendment also responded to the concern, particularly among the Anti-Federalists, that a standing federal army could raise the specter of tyranny. If the entire populace were armed, a federal army would be unlikely to pose a threat.
Heller, however, sparked claims that conservative judicial activists had invented an unenumerated right to bear arms, just as liberal judicial activists had done with privacy. While cynics may think that both forms of judicial activism might attract a Justice Anthony Kennedy (the author of Casey and Obergefell), conservatives on the Court may have avoided taking another case where the core principles of the right to bear arms appear shaky. An individual right to bear arms cannot stretch its limbs until a new conservative majority grounds it more securely in the constitutional firmament.
Justice Kavanaugh and his colleagues must develop a theory of unenumerated individual natural rights that does not fall prey to the liberal temptation (explored in our last article) to use constitutional law simply to advance the popular intellectual program of the day. We think the new Roberts Court can achieve this by clarifying the relationship between natural law and rights and the written Constitution. There is little doubt that the Framers who wrote and ratified the Constitution were steeped in natural law and natural rights — indeed, in the late 18th century, there were no alternative systems of philosophy widely held among the Founders. As the Declaration of Independence simply stated, they believed that all men, as rational beings created by God, held certain inalienable rights. But uncertainty continues to exist over whether they expected a Constitution or courts to enforce those rights if they did not appear in written law. If courts and legislatures today can enforce an individual right to bear arms, which is recognized by, but also preexists, the Second Amendment’s text, it must be because the Framers assumed that the federal government could protect natural rights over the passing legislative fancy. Central among those natural rights, as explained by John Locke and his successors at the time, would be the right to self-defense, which a right to bear arms only implements, like a tool.
Grounding the Second Amendment in natural law might also solve the problem of McDonald’s incorporation against the states. Conservatives have long held a justifiable skepticism of the manner in which the Supreme Court of the 1940s and 1950s held that the Bill of Rights applied to the states through the 14th Amendment’s due-process clause. In a preview of its mistakes on privacy, the Court found that the procedural right to a fair process somehow required the states to recognize the substantive rights of the first eight amendments to the Constitution.
But just as we argued earlier with privacy, the true constitutional source for a right to bear arms comes through the 14th Amendment’s privileges and immunities clause. The radical Republicans believed that one of slavery’s great sins was its deprivation of the basic natural rights of blacks: to think and speak for themselves, to keep the fruits of their labors, to participate in political life as full citizens, and to defend their lives and property, just as any other human being could. In drafting the privileges and immunities clause, Reconstruction congressmen argued that it would override the South’s laws that had prohibited blacks from bearing arms and defending themselves. Rather than give in to the liberal enterprise of inventing rights from whole cloth, the new Roberts Court could more faithfully ground the right to bear arms by honoring the understandings of the Republicans who freed the slaves and fought to enshrine their equal rights in the Constitution.
Once it has reestablished its Second Amendment jurisprudence, the Roberts Court can then look forward to the task of elevating the right to bear arms to the same level as the others in the Bill of Rights. Unfortunately, like unsupervised students when the teacher has left the classroom, the lower courts have largely done as they please. Normally, the Court will instruct lower courts as to a test to apply to determine whether a constitutional right has been infringed. A frequent test is one with tiers of scrutiny, with more or less scrutiny depending on the degree of infringement and the counterbalancing government interest.
But the Court has failed to announce any such test with the Second Amendment. The lower courts have struggled to come up with their own, which they have borrowed from “intermediate scrutiny” cases in other areas. Government action, here the regulation of gun ownership or use, is upheld if it furthers an important government interest and does so via means substantially related to that interest. Lower courts, for example, have upheld ten-day waiting periods before a firearm purchase, bans on semi-automatic rifles and large-capacity magazines, bans on openly carrying a firearm in public, and bans on carrying a concealed gun in public. Compared with cases on free speech, religion, and privacy, these courts have lowered the hurdle that the government must clear. Meanwhile, the Supreme Court has merely looked the other way.
With Justice Kavanaugh now providing conservatives with a more secure majority, the Court can end its sidestepping of the Second Amendment. To ensure the equal treatment of rights, the Court should apply the same tests it uses to protect free-speech rights to also protect the right to bear arms. For instance, as proposed by UCLA law professor Eugene Volokh and endorsed in passing by the D.C. Circuit last year, the Court could invalidate restrictions that fail to leave open ample alternative channels to exercise rights. Such a test would allow for more-extensive background checks, but not bans on weapons for self-defense or high bars on the right to carry guns in public. And such a test would need to be consistent with the original understanding of the right at the time the Bill of Rights was adopted.
Some regulations would be constitutional, just as the Court allows reasonable, neutral limits on the time, place, and manner of speech (anarchists may not hold a legal protest in a residential neighborhood in the middle of the night — at least, not anywhere except, seemingly, in the front yard of the home of a Fox News host). Just because a law limits a constitutional right in some way does not mean the law must fall. Resolving the conflict between reasonable regulations and a constitutional right, when brought forward in cases over precise regulations and individual facts, will remain the job of the lower courts once the Roberts Court has had it say. But so far, it is the Second Amendment that has repeatedly fallen in the lower courts in the face of a silent Supreme Court. With Kavanaugh now on the Court, that silence should end.
Far too often for far too long, the Second Amendment has been a second-class right, banished to the back of our constitutional bus. Perhaps the day will come when the people will determine that the best way to curb gun violence is to cull the Second Amendment from the Constitution. Until then, the Court’s constitutional duty is to keep enforcing the right to bear arms just as it would any other constitutional right. Constitutional rights are legal equals. They should be treated as such.
— John Yoo is the Emanuel S. Heller Professor of Law at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. James C. Phillips is an attorney in private practice and a non-resident fellow at Stanford Law School’s Constitutional Law Center.