Monday, May 17, 2021

Gun Control, the Second Amendment, and Originalism's Folly

 By Eric Segall

Although the Supreme Court will decide a few nationally important cases this term, such as one relating to the claims of a religious organization that it get preferential treatment under the free exercise clause, and yet another case challenging the validity of the Affordable Care Act, there are relatively few blockbuster cases coming down this term. Next year, however, expect a big abortion case, and the Court has already decided to hear a challenge to New York's law regulating who can carry guns secretly in public. Second Amendment advocates allege that the law is unconstitutional because people have to present a special reason to carry guns, above and beyond a generalized need for self-defense. New York argues that the law is necessary for public safety.

The Justices will, of course, pay lip service to originalism when they decide this case, but the nature of "arms" themselves and American society today are so different from colonial America that making decisions based on the values and practices of those earlier times is facially absurd. Moreover, if the Justices take seriously the history of gun laws in this country, absent obviously unreasonable or irrational laws,  they should (but won't) modify their decisions in District of Columbia v. Heller, and McDonald v. Chicago, to allow for reasonable regulation of today's deadly weapons.

This blog post outlines the major and most obvious arguments demonstrating that strong judicial oversight of state and federal gun laws cannot be justified by an originalist interpretation of the Second Amendment. The only way to arrive at strong constitutional protection for gun rights is through living constitutionalism--something this Supreme Court and most conservative scholars pretend to reject. Although we likely will not get a resolution of this case for another year, it is never too early to discuss the absurdity of originalist arguments against New York's reasonable law trying to keep its people safe.

Two caveats: this post is limited to the original Second Amendment and its time period, not 1868, when the 14th Amendment was ratified or the 1920's, when the Court started to incorporate the Bill of Rights against the states. I have conceded before that the strongest arguments for judicial enforcement of the right to own a gun comes from substantive due process, the privileges or immunities clause, or the Ninth Amendment. Of course, none of those arguments will be accepted by a majority of the Justices anytime in the near future, and for excellent reasons.

Second, this is a blog post, not a law review article. There may be some historical evidence that can be misapplied to respond to some of the arguments below. But that evidence is paltry and unpersuasive, and the length of this post must be somewhat limited, so I am not going to present it here. If I thought there was a real and substantial counterargument to what I argue below, I would respond to it directly. 

Two Totally Different Worlds

Both the type of guns available and the everyday life of people in America have changed so dramatically over the last two centuries that resort to the values, practices, and legal regimes of eras long past is quite simply absurd. Here are just a few of the crucially important differences (some of what follows is a synthesis of an essay written by David Grace).

A. In 1791, using a gun required training and work. The "loading, aiming, and firing [of] a gun was a complicated process that took about thirty seconds per shot. You simply couldn’t do it effectively without training and practice." Today, almost anyone can fire a handgun, often with extremely unfortunate results. Similarly, hurting oneself with a rifle in 1791 was quite unlikely, whereas today virtually no day goes by without a tragic and often deadly gun accident.

The indisputable truth is that guns today bear as much resemblance to the guns of 1791 as the cannons used by the Continental army bear resemblance to modern bombs dropped from drones. Yes, we must apply general aspirations like free speech principles to modern inventions like the internet and yes we must apply the commerce clause to airplanes, but how to do that will not be aided by evidence from 1791. The same is true for the balance between gun rights and gun safety.

B. It is simply not arguable that the main fear of those opposed to the ratification of the Constitution was that a strong central government would become authoritarian in many ways, intrude upon state independence, and create a standing army to potentially tyrannize the people. Madison and others tried to allay these fears through the Second Amendment which prohibited the taking of arms from "well-regulated" militias. Nothing about that history suggests there would be judicial oversight of state and city laws regulating guns to keep  people safe, much less a concern about hunting--a constitutional myth Justice Scalia fabricated in Heller.

We have a Second Amendment because those in favor of the ratification of the Constitution, in the words of Grace, wanted "to defuse the opposition of the anti-federalists to guarantee the continued existence of armed State militias as a counter to the Federal government." Whether one uses expected applications, original public meaning, original intent, or some combination of the three, there is no plausible way to get from an originalist interpretation of the Second Amendment to judicial oversight of reasonable gun laws unrelated to the militia. Again, one can only get there by judges taking enormous liberty with what principles the Amendment originally stood for. That happens all the time in constitutional litigation, by judges of both political parties, but that way of deciding cases is not originalism in any meaningful sense of that term.

C.  America in 1791 was a largely agrarian society ruled by local governments where rifles and other arms were expensive, hard to use, and could do only limited damage. Today, the federal government is omnipresent, guns are easy to get, and a single person with one assault rifle can and has done terrible and long-lasting damage to entire communities. The relationship between guns and safety today and guns and safety in 1791 is simply too different for 1791 data or values to be of any real use.

For example, whatever reasons New York might have had in 1791 if it wanted to prohibit most people from secretly carrying guns in public would carry so much more and different weight today. The population of New York City in 1791 was a little over 33,000 whereas today it is over 8,000,000. Madison Square Garden holds roughly 20,000 people and there is no remotely close equivalent in 1791. Guns today are much smaller, faster, and easier to hide. There is far more tourism both nationally and from abroad than there was in 1791, raising the stakes of people secretly carrying guns. Facts matter. 

Laws from the Founding

When one looks to what gun laws were actually in place during the colonial era and after the ratification of the Second Amendment, the originalist arguments for anything but deferential review of state and local gun laws are ahistorical and unpersuasive. These laws were demanding and intrusive, allowing states to keep track of who owned arms, imposing all kinds of requirements concerning how and where to store gun powder, prohibiting possessing and using guns in certain locations, and even requiring loyalty oaths the refusal of which could result in disarmament. 

One scholar has said the following about early gun laws dealing with carrying concealed guns in public: "As early as 1686, New Jersey enacted a law against wearing weapons because they induced 'great Fear and Quarrels.' Massachusetts followed in 1750. In the late 1700s, North Carolina and Virginia passed similar laws. In the 1800s, as interpersonal violence and gun carrying spread, thirty-eight states joined the list." 

In addition, numerous colonies and then states passed laws regulating who could own guns. These laws were applied to felons, foreigners, and other groups deemed dangerous by the standards of the day. There were many other types of law dealing with where guns could not be carried, such as in bars and other public places. 

Saul Cornell, a real historian, has ably documented all of this and said (in a paper co-authored with Nathan DeDino):

These statutes all demonstrate the ample power of the state to regulate and restrict firearm usage and ownership to achieve the goal of creating a well regulated society. A wide range of gun regulations, including safe storage laws; time, place, and manner restrictions; and even prohibitions on certain classes of weapons have deep roots in American history stretching back before the American Revolution and extending forward in time long after the Second Amendment was adopted.

There may or may not be compelling public policy arguments against gun control legislation. But those policy arguments should be for voters and legislators, not judges. There are also viable arguments that, if we want the Supreme Court to recognize unenumerated rights, then the right to own guns for self-defense might be justified. What is simply not arguable is that the Second Amendment's original meaning, no matter what form of originalism one uses, limits state and local governments from enacting and enforcing reasonable gun safety laws. The idea that anything happening around the time of the ratification of the Second Amendment is to the contrary is just folly, or as Former Chief Justice Warren Burger once said, a "fraud."