Laws & Rights
Supreme Court Second Amendment Cases: Careful What You Wish For
A few days ago, pro-2A people were deeply disappointed when the United States Supreme Court declined to hear a number of Second Amendment-related cases, believing that victory was assured with a Court that leans “conservative” by a narrow margin. Although many Second Amendment activists see this as a missed opportunity, and it may well have been, there’s one thing you need to know about the Supreme Court and Second Amendment cases: Be careful what you wish for, because you might just get it–good and hard. Here’s what I mean.
Twelve years ago, the Supreme Court heard Heller vs. District of Columbia. There were not one, but two results of that case that are germane to every firearms owner now and for the foreseeable future. The result that we all paid attention to was that the Court had ruled that the Second Amendment does indeed protect an individual right to keep and bear arms. (This is as opposed to what the District of Columbia was attempting to argue–that the 2A only defends the rights of “militias.”) Although that decision did nothing but verify what we pro-gun activists have known all along, it completely changed the landscape of the battle for gun rights. Naturally, that’s the part that we all paid attention to.
But we missed something, something buried in the debate between lawyer Alan Gura and the late Antonin Scalia, and it was a tremendous loss. Justice Scalia–whom nobody ever accused of being anti-gun–got into a discussion about what kinds of guns the Second Amendment protects. During that exchange, Scalia asked Gura what weapons should be covered by the Second Amendment, and Gura’s answer was “firearms in common use by civilians.” And when Gura won the case, that “in common use” phrase became precedent.
Do you know kind of firearm isn’t in common use and hasn’t been since about 1934? Machine guns. With the Heller decision, full-auto firearms went off the table…and they’re probably not coming back in this generation or the next. Bear in mind that “machine guns” are not a new invention at all; the first designs were created 500 years ago by Leonardo da Vinci, and there have been functioning versions of same since the early 18th century.
However, because of the National Firearms Act of 1934, full-auto guns were not in “common use” by the time of the Heller decision, so Second Amendment purists like me won’t get to see the rules about civilian ownership of these firearms changed anytime soon.
That’s not the only reason Second Amendment activists shouldn’t get too disappointed about the Supreme Court denying cert on those firearms cases. There’s a lot more to worry about than a pro-2A justice and a pro-2A lawyer sort of accidentally clearing an entire class of guns from the discussion. There’s the fact that although Supreme Court justices can be shown to either lean towards an originalist or an activist interpretation of the Constitution…but that doesn’t mean that’s how they’ll always vote. Supreme Court justices seem to thrive on zagging when everyone thought they would zig.
Why did the Supreme Court deny certiorari on these cases? We don’t know for sure, but we should remember that the Heller case was the first time the Court had heard a major gun case in 74 years. The fact that we were able to get a second case heard, McDonald vs. Chicago, just two years later was a huge (and, luckily, pleasant) surprise. What we do know is that even after both of those landmark cases, anti-gun constituencies around the country continued to thumb their noses at the very clear ruling of the Supreme Court.
The upshot of all this is that the Supreme Court moves in mysterious ways, its wonders to perform, and therefore we shouldn’t waste too much of our time and emotional energy worrying about what they’re doing right now. The best thing we Second Amendment activists can do to care for our inalienable right is to keep working at the local, grassroots level to bring every unconstitutional gun-grab to light.
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