For the first time in a decade, the Supreme Court has agreed to take up a Second Amendment case. The Court is due to hear arguments this fall in New York State Rifle & Pistol Association Inc. v. Corlett, a case involving a challenge to New York’s concealed-carry law, which requires a person to show “proper cause”—or the need for self-protection—to obtain a license to carry a concealed firearm outside the home. It’s not the only major Second Amendment case this year: Just last Friday, a federal district court judge ruled that California’s ban on assault weapons—which was signed into law by a Republican governor in 1989—is unconstitutional.
Although Friday’s decision—which came after review of approximately 14,000 pages of trial evidence and testimony—will undoubtedly be appealed to the Court of Appeals for the Ninth Circuit, the judge’s bold language comparing AR-15 rifles to Swiss Army knives could signal a unwelcome shift in the already bleak trajectory of gun violence in America.
Since January 1, 2021, there have been over 18,900 deaths in the United States due to gun violence, including 130 children under the age of 12. We’ve seen 256 mass shootings (defined as four or more victims shot), including 16 mass murders (defined as four or more killed). The number of mass shootings in just the first half of 2021 is nearly as high as the total number of mass shootings in the entire year of 2014 (when there were 270). New gun ownership has also surged during the COVID-19 pandemic, with a record-breaking 1.2 million federal background checks needed in a single week this spring.
Unlike First Amendment rights, which most Americans understand can be clipped by the government under certain circumstances, the Second Amendment has garnered a folklore quality that has many people wrongly believing it is sacrosanct and not subject to any constitutional limitation. In reality, the Second Amendment is unclear. It includes two phrases—“A well regulated Militia, being necessary to the security of a free State” and “the right of the people to keep and bear Arms shall not be infringed”—that the Supreme Court has construed in disparate ways. Is the right to bear “Arms” a collective right or an individual one?
To the avowed textualist or originalist who believes that the Constitution’s terse provisions have a fixed, singular, correct meaning, the Court’s Second Amendment precedent is defiant. In 1939, the Supreme Court held in United States v. Miller that “in the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] . . . has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” That was the law of the land for nearly seventy years—that the Second Amendment only protects the right to bear arms in connection with militias.
In 2008, in an opinion authored by Justice Antonin Scalia for a 5-4 majority, the Court brushed off its militia-only interpretation in favor of an individual rights interpretation of the Second Amendment. But even in that decision, District of Columbia v. Heller, the Court did not hold that there is an unqualified right to gun ownership in the United States.
The Second Amendment refers to “Arms,” but does not define that term. If one were to jump into a time machine and zip back to 1791 when the Second Amendment was adopted (as some originalists would profess to do), one would not find AR-15s hanging around the pistols and muskets of the day. Scalia’s decision in Heller was accordingly limited: It held that there was an individual Second Amendment right to (a) carry a pistol (b) in the home (c) for self-defense. That’s it.
Scalia went out of his way to underscore that the Second Amendment does not guarantee a right to keep and carry “any weapon whatsoever in any manner whatsoever and for whatever purpose.” Citing older cases, he even noted that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” The Heller Court limited “the right to keep and carry arms” to “the sorts of weapons . . . in common use at the time,” adding that “that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ . . . that are most useful in military service.” The majority cited “M-16 rifles and the like” as examples of firearms that might defy Second Amendment protection.
Judge Roger T. Benitez, author of last week’s California ruling, wrestled with this enormous caveat in Heller by calling the AR-15 “good for both home and battle.” Judge Benitez wrote that “bazookas, howitzers, or machineguns” would be on the military side of the line, while “the firearms deemed ‘assault weapons’ are fairly ordinary, popular, modern rifles.” He noted that lots of Californians get stabbed every year, as if to suggest that an AR-15 is as mild as a kitchen knife.
On a number of levels, the judge’s analysis seems way off the mark. For starters, Heller flagged the M-16 as potentially bannable despite the Second Amendment, and the M-16 was, as the judge acknowledges, developed from the AR-15 for the U.S. military during the Vietnam War. The primary functional difference is that nearly all M-16s have a fully automatic mode and are less commercially available, while the semiautomatic AR-15 is, in the words of one gun vendor, “the most popular rifle in America,” with “an estimated 10,000,000+ in civilian hands.” Its sale was restricted under federal law from 1994-2004, but it has since been used in many mass shootings—including Sandy Hook, Las Vegas, and Parkland. The judge’s suggestion that AR-15s are just “average guns used in average ways for average purposes” seems false and frankly offensive, and more to the point would seem to clash with Heller.
Also, while the Second Amendment does not define “Arms,” courts’ role in defining most constitutional provisions—such as equal protection under the law—inevitably involves a balancing of one public good against another. Judge Benitez framed the salient question as whether “a modern rifle commonly owned by law-abiding citizens for a lawful purpose” can be regulated by the government? But this question ignores the other side of the equation: the potential harm semiautomatic weapons impose on the life and safety of other law-abiding Americans. The Second Amendment does not ratchet in the direction of the desires and “liberty” of the rifle owner. Yet for Judge Benitez, “when a severe restriction on the core right of self-defense amounts to a destruction of the Second Amendment right, it is unconstitutional under any level of scrutiny.”
Of course, this argument is circular. What does it mean to “amount to a destruction of the Second Amendment right”? Do Californians need an AR-15 “when it comes to self-defense in the home,” which is the touchstone of Heller? If so, why draw the line at fully automatic M-16s, as was presumptively done in Heller? Why isn’t a handgun enough for “a Californian . . . to defend his family in his home,” especially when, according to the judge, “reducing gun crime is a very important objective”?
There are no clear answers in the Constitution to any of these questions. What really bothers me about the Second Amendment debate—in addition to its implications for the agonizing near-daily news of another mass shooting in the United States—is the intellectual dishonesty of treating the scope of the Second Amendment as clear, obvious and established in the text drafted in 1789 and adopted in 1791. Contra this myth, there is great ambiguity in the text of the amendment, which is precisely why mountains of books have been published attempting to explicate and interpret it.
If unelected federal judges are going to prevent states and municipalities from banning private ownership of military-grade weapons, they should at least be forthcoming about their reason for doing so. It has little to do with the Constitution. It’s mostly about personal taste.
On that front, Judge Benitez was fairly transparent. By his reckoning, “across the U.S. only 22%” of the mass shootings analyzed in one study “involve[d] an assault weapon.” For some of us, that’s 22% too many.