June 2022
What to do in the aftermath of the grade school massacre in Uvalde, Texas? We should realize that there is not much room for meaningful intervention in gun violence in the U.S. Many lawmakers are conceding that Congress must do something, mostly to show that they care and can be effective. More than thoughts and prayers, they keep saying. Lip service as public service.
Trouble is the ammo has been stockpiled, thanks to the radical 2008 decision in DC v. Heller that was “egregiously wrong from the start” and has had disastrously “damaging consequences” and “far from bringing about a national settlement” of the gun violence issue, Heller has “enflamed debate and deepened division” and let loose a craving for guns.
The highlighted words are not mine. They are Supreme Court Justice Alito’s. He crafted them to apply to the abortion decision in Roe v. Wade in 1973. Disingenuous as drafted for Roe, they are glaringly applicable to the Heller decision.
In 2008 when Heller was decided, the 2nd Amendment right to keep and bear arms did not apply at all to individuals in their daily lives. It applied to those connected with service in a militia, as the text says.
Seventy years earlier, in 1939, the Supreme Court addressed squarely the meaning and scope of the 2nd Amendment in US v. Miller. Does the 2nd Amendment protect an individual's right to keep and bear a sawed-off double-barrel shotgun, or is Congress’ law, the National Firearms Act of 1934, constitutional? The 2nd Amendment might apply, the unanimous Court held, but only if the actions of the two guys who transported a sawed-off double-barrel shotgun had a “reasonable relation to the preservation or efficiency of a well regulated militia.” If not, Congress and the states could do something about double-barrel shotguns without concern that the legislation offended the 2nd Amendment. They could legislate.
It was a unanimous Court decision at the most divisive time for the Court’s legitimacy until today. Two years earlier, President Roosevelt attempted to pack the Court by adding more justices as a way to outflank the Court, which had held much of his New Deal legislation unconstitutional. In 1937, the Senate tabled the court-packing debate for good. The Court had heard the footsteps. The unanimous decision was written by Justice McReynolds, one of the most conservative members of the Court.
When I was in law school from 1977-79, Miller was the law of the land. The notion that the 2nd Amendment applied to individuals in their daily lives was folly, of the kind that law professors had no use for, and fellow students wouldn’t even debate about. One of the law professors who was at the University of Chicago at the same time as I was was Antonin Scalia who would write the Heller decision 30 years later. He must have used the time to stew on it.
By 2008, the Court was emerging as a conservative, though evenly divided, Court. Three years earlier, John Roberts replaced William Rehnquist as Chief Justice, a position he’s held ever since. Scalia was a force.
Advocates sensed an opening. Amici (friends of the Court) lined up on both sides. The issue was whether the Firearms Control Regulations Act of 1975 that required all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock" violated the 2nd Amendment. The context for the challenge was that The District of Columbia generally prohibited the possession of handguns, and the aggrieved person was a DC cop authorized to carry a gun while on duty who wanted to keep the gun at home.
It was an ideal set of facts for a well-financed campaign in favor of expanding 2nd Amendment rights to bolt into gear. A majority of the members of Congress signed a brief advising that the Court overturn the limitations on guns, including Vice President Dick Cheney, who broke with the Bush administration’s official position, and in his role as Senate president, argued that the 2nd Amendment should apply. Then-Texas Attorney General Greg Abbott commissioned Ted Cruz to author a brief arguing for 2nd Amendment protections. Interestingly, that brief foresaw a regime in which states have a strong interest in maintaining each of the states' laws prohibiting and regulating firearms.
The Court’s nostrils flared with the Heller decision. Scalia deployed a twisted logic to claim he was abiding by his bedrock right-wing philosophy of originalism and textualism when he concluded that reference to a militia in the 2nd Amendment was only prefatory and not operative so that keeping and bearing arms is an individual’s right. And the Miller case, entrenched as clear precedent for 70 years? As the right wing of the Court has expressed about Roe, a precedent of 50 years, they don’t need no stinkin’ precedent. Rather than overrule Miller, which the Court effectively did, an indignant Scalia mocked Justice John Paul Stevens and concluded that all the Miller case did was rule that a sawed-off shotgun was not eligible for 2nd Amendment protection. Imagine. Only 15 years later and we have assault weapons fitting snugly into the embrace of the 2nd Amendment.
The divide in the Court in 2008 is familiar territory. The five in the majority were Scalia, Thomas, Alito, Kennedy & Roberts. The dissenters were Stevens, Souter, Ginsburg & Breyer.
Unfortunately, the divide now is deeper and more entrenched. Replace Scalia with Neil Gorsuch, Kennedy with Brett Kavanaugh and add Amy Coney Barrett for six. The other side of the ideological spectrum is now three - Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson (replacing Breyer).
State legislatures, as with abortion, have become emboldened to enact laws that bury Roe and Miller. Federal lower courts, teeming with right-wing ideologues who are in place for life, relish throwing gas on the fire, in the name of the 2nd Amendment.
Thirty-one states allow the open carrying of a handgun without a permit or license. Concealed carry is legal, some needing a permit, some not, in all 50 states. More than 40 states have no assault weapons bans.
California has one, enacted in 1989 after a grade school shooting in Stockton left five school children dead and 32 others wounded. One year ago this week, federal judge Roger Benitez, a Bush appointee, struck down California's law. In his opinion, he wrote: "Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under Heller and Miller.”
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"Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under Heller and Miller.”
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The intersection he must have been referring to was one at the corner of Shoot-Don’t Shoot. He wrote: “This case is not about extraordinary weapons lying at the outer limits of 2nd Amendment protection. The banned “assault weapons” are not bazookas, howitzers, or machineguns. Those arms are dangerous and solely useful for military purposes. Instead, the firearms deemed “assault weapons” are fairly ordinary, popular, modern rifles. This is an average case about average guns used in average ways for average purposes.” The decision has been stayed pending consideration by the 9th Circuit Court of Appeals.
In the week after the shooter in the recent Uvalde, Texas grade school rampage turned 18, he legally bought two AR platform rifles and 375 rounds of ammunition.
In the meantime, the Supreme Court is about to rule in New York State Rifle & Pistol Association Inc. v. Bruen on a 110-year-old New York law, the Sullivan Act, that requires state residents to obtain concealed carry licenses by demonstrating “a special need for self-protection distinguishable from that of the general community.”
It is anticipated, with a similar level of certainty to the imminent overruling of Roe v. Wade, that the Court will rule that New York state’s concealed carry law violates the 2nd Amendment and cannot be enforced.
So where are we? Let’s take stock. The disastrously “damaging consequences” of Heller, as Alito wrote in reference to Roe, will continue to wreak havoc on a country and political landscape disinclined to do much about guns.
That’s why the lip service oozing out of Congress relates to namby-pamby actions such as federal laws requiring criminal background checks for gun buyers or ways to incentivize states to pass “red flag laws” aimed at keeping firearms away from potentially dangerous people.
Why not, for instance, enact or re-enact a ban on assault weapons? Congress in 1994 enacted the Federal Assault Weapons Ban. Signed into law by then-President Clinton, it lapsed after 10 years, in Sept. 2004. A study by the National Institute of Justice concluded in 1999 that the “ban’s impact on lethal gun violence is unclear because the short period since the enabling legislation’s passage created methodological difficulties for researchers.” The report noted that the National Institute of Justice was funding a followup study that was to be released in 2000. The followup, which noted that its findings were similarly premature, was released in 2004, submitted to the U.S. Department of Justice, but not published by the Department.
So why not have another go at it, and ban assault weapons throughout the U.S.?
Two reasons, both written on the wall. Congress, with its MAGA Republican base, won’t vote to re-enact it. They're having a tough enough time passing namby-pamby gun violence legislation. And the Heller-infused Supreme Court would likely hold an assault weapons ban unconstitutionally violative of the 2nd Amendment. Checkmate.
It’s not the NRA (National Rifle Assn.), its money and influence, mitigated by its baggage of corruption, that’s in the way. Its recent annual meeting in Houston held in the shadow of Uvalde’s seering grief was promoted as having Donald Trump “headline a star-studded cast of political heavyweights.” The star studs were to include Trump, “Texas Gov. Greg Abbott, Sen. John Cornyn, Sen. Ted Cruz, Rep. Dan Crenshaw, North Carolina Lt. Governor Mark Robinson, and South Dakota Gov. Kristi Noem.” By convention time, Abbott had sent a pre-recorded message and Cornyn and Crenshaw had decided not to attend.
The United States is not Canada, which is expected to enact regulations that will ban the sale, purchase, importation or transfer of handguns, and institute a government buyback program of military-style assault weapons, according to the New York Times.
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| NYT headline May 30, 2022 |
Nor is the U.S. New Zealand, which in 2019 launched a semiautomatic weapons ban and buyback program after a lone shooter stormed two mosques, killing 51 people. Nor is the U.S. Australia, which in the 26 years since a 1996 mass killing of 35 people, has collected more than more than a million semiautomatic weapons after they were banned by legislation. In the decade before gun law reform in Australia there were 13 mass shootings. Since, there has been one - a farmer shot and killed six members of his family, then himself in 2018.
The U.S. is more like Mexico and Guatemala, which are the only two other countries that have a constitutional right to own a gun, according to Business Insider. The 2nd Amendment has inspired other countries to provide citizens with the right to own guns — including Bolivia, Costa Rica, Colombia, Honduras, Nicaragua, and Liberia. All have been repealed.
A few respected people have offered a solution-in-the-sky. Repeal the 2nd Amendment. The New York Times recently resurrected an op-ed from 2018 written by then-retired Justice John Paul Stevens, who had dissented in Heller. If it was a plausible idea four years ago, and it wasn’t, it isn’t now. The Constitution requires that for a constitutional amendment to be repealed, a measure needs to be proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures. It is then up to the states to approve it, with three-quarters of the states voting for it.
The New York Times also published a guest essay by two former law clerks, one for Scalia, the other for Stevens, who were in the thick of the thinking in Heller. They opined that the roadblock to effective gun laws is neither the 2nd Amendment nor Heller. They believe that
politicians have misconstrued Heller and that lawmakers have plenty of latitude to regulate gun ownership and use. Tell that to Federal Judge Benitez, who sees assault weapons as “fairly ordinary, popular, modern rifles” that cannot be banned or to the current Court itself that is considering New York’s concealed carry law.
I prefer to view history and the future neither through Stevens’ lens nor through the hindsight of two former law clerks but through the pen of former conservative federal judge J. Harvie Wilkinson, a Reagan appointee on the 4th Circuit Court of Appeals, who in a 2013 law review article criticized the Heller majority for bypassing the ballot and seeking to press their political agenda in the courts.
The problem, or the killer, is not the 2nd Amendment per se. It’s the “egregiously wrong from the start” Heller opinion in 2008.
That’s where my dream comes in. Chief Justice Roberts was among the 5-4 majority in Heller. In the 15 years since Heller, the courts have been transformed by Trump-MAGA appointees that have left the judiciary in the vulnerable position of having become an ideologically driven branch of government. It’s now Roberts’ Supreme Court, not Scalia’s, though Roberts is noticeably losing his legitimacy among the Court’s right wingers. The rift became visible when Clarence Thomas took a public poke at Roberts at a Dallas conference a couple of weeks ago.
Roberts needs to redeem himself in the eyes of justice, which is to be blind to bias. What better way to show it and reclaim his integrity than to write in dissent in the pending New York State Rifle & Pistol Association Inc. v. Bruen case and signal his willingness to reconsider Heller. That would presumably add up to four justices - Sotomayor, Kagan, Brown Jackson and Roberts - poised to reconsider Heller’s grip on the 2nd Amendment.
I’d take one vote away over checkmate any day.
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