Constitutional Law Professor Jeffrey G. Purvis, San Joaquin College of Law
I can't believe it has been over eight years since the Supreme Court finally recognized our God-given right to have guns, as codified in the Second Amendment to the Constitution of the United States, and I still can't wear my loaded Glock to the supermarket. Then suddenly it came to me--I live in California, the latte-sipping communistic capital of elitist do-gooderism. Well, now that Donald J. Trump is President of the United States, get ready for my H&K VP9, locked and loaded, in your liberal face, Professor Purvis! It's no coincidence that between the Heller decision and now, Barack Hussain Obama was President, so he wouldn't allow the Second Amendment to be enforced. Those days are over, and we have our America back again, soon to be great again. A regular American like myself can walk down the street again, head held high, and if any politically correct, diverse immigrant gives me lip, I'll just let my MP 40 "Schmeisser" do the talking. You claim to support the Constitution, Professor Purvis, so why don't you come to our next American Freedom Party meeting, and learn how to exercise your Second Amendment rights?
--Bannon Brimelow, Warrington, Calif
It is always a pleasure to hear someone support the Constitution of the United States. I'm guessing you also support the freedom of speech of right-wing hate mongers, and the freedom of religion of Christians who sincerely believe that gays are abominations and African-Americans bear the mark of Cain. Alas, your willingness to regard your constitutional rights as sacrosanct, and the constitutional rights of others as something to be brushed aside, like a water cannon blowing away Native Americans, is not confined to conservatives, although they practice their hypocrisy much more assiduously than others. By an eerie coincidence, our topic today on Valley Views on the Law is the Second Amendment rights of Californians, so your e-mail gives me an opportunity to prime our discussion with a description of the judicial activism of the Roberts Supreme Court when in 2008 it invented your sacred right to arm yourself to the teeth whenever and wherever you like. Why "judicial activism?” Because that is the term everyone uses to describe a court decision that does not comport with their moral and political preferences. Conservatives scream judicial activism when the Supreme Court protects the rights of women to reproductive choice, or of the LGBTQ community to equal human rights. Progressives scream judicial activism when the Supreme Court protects the free speech rights of wealthy people or of right-wing nonprofit corporations.
The justices of the Supreme Court operate in a similar manner. When deciding cases, they choose an outcome first, based upon their moral or political preferences, then they construct a justification for that outcome. Rather than writing a reasoned analysis of constitutional interpretation, they stake out a position and then defend that position with a polemical intensity that brooks no ambiguity, uncertainty, or contrary positions. District of Columbia v. Heller, the 2008 decision that announced a personal constitutional right to possess a gun, is a perfect example of this. The Second Amendment is succinct, saying, "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." Justice Scalia, writing for a majority, declared forcefully that the first part of the amendment, what he called the prefatory portion, only announced the reason the Framers wrote the amendment, but it had nothing to do with the constitutional right they were protecting. Justice Stevens, writing in dissent, declared just as forcefully that the "well-regulated Militia" phrase controlled the nature of the constitutional right completely. Thus, Justice Scalia and the majority held that the Second Amendment protected the pre-constitutional right of Englishmen to carry arms for self-defense. Justice Stevens argued that the government could regulate the private possession of arms in any manner so long as doing so did not interfere with the maintenance of a militia. Each justice wrote, without explicitly saying so, in a manner that suggested the other justice must be completely insane to believe that his position could possibly be correct. Justice Scalia's position won the vote, and we all benefit from a previously unrecognized constitutional right.
The reason you can't yet take your arsenal to the supermarket, Mr. Brimelow, is that the Supreme Court often decides constitutional issues relatively narrowly, resolving what they see as the specific issue before them, and generally not announcing sweeping rules that lay out a systematic treatment of other related potential issues. Heller decided that the District of Columbia could not make it illegal for a person to keep a working handgun in his home for protection. The majority opinion did not say much more about the nature of the constitutional right to bear arms. Justice Scalia did say this:
"Like most rights, the right secured by the Second Amendment is not unlimited. [T]he the right [is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. [T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
To an academic lawyer, language like that is confounding and infuriating. If, like other rights included in the Bill of Rights, this right to bear arms is fundamental, then any government regulation of it should be subjected to strict scrutiny, the highest standard of constitutional review, which is very difficult for the government to satisfy. Banning felons from possessing firearms would almost certainly fail strict scrutiny, because even if the government has a compelling interest in keeping firearms from violent people, not all felons are violent, so a blanket prohibition would be fatally over inclusive. A similar problem would affect a ban on gun possession by all mentally ill persons. (I note parenthetically that Republicans in Congress are seeking to eliminate a federal ban on possession of guns by mentally ill persons.) Strict scrutiny would place all those longstanding prohibitions in doubt. And if Scalia's language was a hint that the Second Amendment right is not fundamental, and regulation of it will trigger a lower standard of review, such a mid-level scrutiny, then all sorts of limitations on gun possession and ownership would likely be constitutional. It will probably take years for cases to work their way through the lower courts so that the Supreme Court can resolve these issues, one by one. And your MP 40 "Schmeisser" may never be legal, since as I recall it was an automatic fire machine pistol used by the Nazi soldiers during WWII. Heller was explicit that "The Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." Additional comments strongly suggest that military-type weapons are not in the protected class of firearms.
It is easy to imagine the Republicans who now totally control the federal government using the Commerce Power to preempt state laws regulating possession and use of firearms. These would be the same Republicans who fought to prevent the Commerce Power from being used to prohibit guns from around schools, or to protect women from sexual assault. For them, as for nearly everyone else in America, reason and principle mean nothing when pitted against ideology and interest. Perhaps we can look forward to a modern era of gunslingers and posses comitatus, rounding up immigrants, homosexuals, and liberals in a Wild West that will never end. When the inevitable environmental catastrophe ends civilization, we will have plenty of firepower to contest over the ruins with the survivalists. Pardon me while I begin work on my dystopian novel.