The Corner

Law & the Courts

For Gun Controllers, the Courts Are a Minor Problem

(Yuri Gripas/Reuters)

Bret Stephens recently reiterated his call for repealing the Second Amendment. At Bloomberg View, I argue that this is a dead end for anyone seeking to reduce the incidence of murder or massacres.

The first step of the Stephens plan is, in other words, to get nearly everyone in the country to agree that the Constitution should not protect gun rights. He offers no explanation of how this would be accomplished. His columns amount to wishing away the disagreement he seeks to overcome.

A related mistake gun controllers make is to overestimate the practical importance of the Supreme Court’s decisions on guns notably its 2008 decision in D.C. v. Heller recognizing an individual right to own guns. Here, for example, is Democratic operative Dan Pfeiffer in an article from last October that is again making the rounds:

It is certainly true that our short-term policy positions must pass the Heller test, but it is also a major strategic error to confine our vision to a Supreme Court decision that many legal scholars find ridiculous and many generations of judges would find astonishing. Just as Republicans organize themselves around efforts to overturn Roe v. Wade, Democrats should run on changing the balance of federal courts in ways that will make it less likely that citizens will be slaughtered simply because they went to the wrong concert, movie theater, or school.

In thinking about Heller’s practical effect on gun policy, we should remember three points.

  1. None of the policies that Pfeiffer recommends — including a national gun registry and a national gun buyback policy on the Australian model (which, presumably, means it would be mandatory)–has been adopted by the political branches and then struck down by the courts.
  2. American gun laws were roughly as permissive as they are now, and more permissive than those of most other advanced countries, before Heller.
  3. The Supreme Court has left open the question of whether a ban on assault weapons would violate its interpretation of the Second Amendment. It has not had to rule on the constitutionality of a federal ban because advocates of a ban have not been able to get more than 40 votes for their position in the Senate in recent years.

Judicial enforcement of the Second Amendment is simply not a major constraint on gun control. The gun-control agenda’s primary problem is political: Too few Americans have passionately supported it, and too many Americans passionately opposed it, for it to prevail.

Ramesh Ponnuru — Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg View, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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