[ED: This is the second in a three-part series. Click here to read Part 1]
By John Velleco
The first article in this three-part series recounted the U.S. Supreme Court’s recent, and deeply disappointing, abdication of its duty to protect Second Amendment rights in its New York State Rifle & Pistol Ass’n. v. New York City decision of April 27, 2020, which declared the case moot, and then in the Court’s denial of petitions for certiorari in 10 additional cases on June 15, 2020. This second article will focus on how and why the lower federal courts have run off the rails in the 14 years since Heller and McDonald were decided. The third and final article will address what we think can be done about it.
Another way to state today’s topic is: How could the federal courts have so badly screwed up application of the Second Amendment’s clear protections and have upheld a host of terrible state and local gun laws? Let’s go back to the text.
The Second Amendment Text
The Second Amendment could not be more clear: “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.” Ratified in 1791 as part of the Bill of Rights, the 27 words of the Second Amendment are a model of clarity. The Amendment contains its own preamble, specifies its purpose, and makes clear the protection it affords.
Its preamble is to ensure that “a well regulated militia” is properly armed. The year after ratification, Congress passed the Second Militia Act of 1792, which made clear that the word “Militia” in the Second Amendment was not referring to the U.S. Military or the state National Guard units — but was referring to the People — civilians trained to arms, who could be called upon if needed. Indeed, the Constitution makes clear that it protects “the People” — the polity — comprised of U.S. Citizens who established the government, and who retain the authority to reestablish it, should that ever become necessary.
Many today might ask, why does a modern nation need an armed militia? That would be to achieve the Second Amendment’s stated purpose — “the security of a free state.” While the mobs rioting in the streets of many cities do not appear to believe in either security or freedom, the Framers certainly did. They believed that, to preserve the nation’s security and to remain a free people, We the People would need to be well armed.
To ensure that the People would remain armed and thus free, the Second Amendment specified the extent of its protection of “the right to keep and bear arms” — which is the most clear part of all — “shall not be infringed.” We are so tired of hearing government lawyers argue that “no constitutional right is unlimited.” On the contrary, so long as the textual requirements of the Second Amendment are met, then the right is limitlessly and absolutely guaranteed. Let’s focus on what those requirements are.
The GOA Three-part test
One would think that the clarity of the Second Amendment should make any court’s job to defend our “right to keep and bear arms” rather simple. In many GOA and GOF (Gun Owners Foundation) legal briefs, we have explained that there are three primary questions that a court should consider in evaluating a challenge to any gun law.
First, does the law interfere with a member of “the People,” which is properly understood to include only U.S. Citizens and perhaps legal permanent residents? The term “the People” has never included just anyone who may be found in the country — such as foreign government officials, visitors from abroad, and particularly not illegal aliens. The issue as to whether certain persons, such as felons, would have been trusted to be part of an armed militia, is a complicated question and cannot be resolved here. However, with that caveat, so long as a person is at least an adult, law-abiding, U.S. Citizen, then he is part of “the People.”
Second, does the law affect a protected “arm”? According to the Supreme Court in Heller, the term “arm” means weapons of offense or armor of defense, and at minimum includes “all firearms.” In colonial times, the arms in question were muskets, bayonets, early forms of cartridges and other accessories. Today, the Supreme Court has made clear that the Second Amendment protects the lineal decedents of those military arms. Thus, a court should ask: is the firearm in question the type of weapon routinely taken to the field by the modern military? Is it useful for self-defense? Is it helpful in resisting tyranny? In our view, it seems clear that the Second Amendment protects fully automatic weapons. Just as the Freedom of the Press once protected pamphlets, today it protects methods of mass dissemination of ideas. That’s how constitutions are interpreted. The Second Amendment also, obviously, protects a host of ancillary rights — including the right to repair firearms, to purchase firearms accessories and ammunition, and the right to operate shooting ranges.
One would think that the clarity of the Second Amendment should make any court’s job to defend our “right to keep and bear arms” rather simple.
Third, does the law infringe on the activities of “keeping” and “bearing”? Obviously, the Second Amendment does not protect certain activities, such as recklessly brandishing a handgun, or perhaps exporting American technology to communist China. But at minimum, the Second Amendment protects the ability of people to keep firearms in their home and to carry them in public, along with the traditional uses of target shooting, training, hunting, etc.
If the answer to the above three questions is “yes,” and if the law being challenged “affects,” “burdens,” or “implicates” — or whatever else a clever court wants to call it — then it “infringes” a right that “shall not be infringed.” The law is void, and it must be struck down. Indeed, courts have a duty not to be complicit in government’s enforcement of unconstitutional gun laws.
Now in certain limited cases, there are other rules of law that must be applied. For example, a state-run prison does not need to afford inmates (or visitors) the right to keep and bear arms, and a county courthouse is not required to allow guns into courtrooms. The government has the property rights of a proprietor in such situations. Just as a store owner has the right on his own property to post a sign saying “no firearms” (and we have the right to decide to shop elsewhere, if we want), the government has similar property rights over certain buildings that are designated for specific uses.
The Circuit Court Two-Step Test
Now let us contrast the GOA Three Part text-based test with the test used by most federal circuit courts, known as the Two-Step. Paraphrasing how that two-step test was applied by the Fourth Circuit in Kolbe v. Hogan (2017), the court first asks whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. If the answer is no, then the challenged law is valid. If, however, the challenged law imposes a burden on conduct protected by the Second Amendment, the court then applies an appropriate form of means-end scrutiny. The court then selects between strict scrutiny and intermediate scrutiny, looking to First Amendment cases as a guide.
The type of scrutiny chosen depends on the nature of the conduct regulated and the degree to which the challenged law burdens that right. If strict scrutiny, the government must prove the law is narrowly tailored to achieve a compelling governmental interest. If intermediate scrutiny, the government must prove the law is reasonably adapted to a substantial government interest and there is a reasonable fit between the law and a substantial government objective.
Naturally, governments do not like to allow their citizens the right to resist their power — which is exactly why the ability to resist is so important.
Note that no part of the Circuit Court Two-Step test requires the court to analyze the meaning of the text of the Second Amendment, as written. This is no accident. These courts do not want their rulings to be constrained by what the Framers wrote and meant. The Two-Step test gives judges carte blanche authority to uphold or strike down laws based on several atextual, judgmental standards. It is all made up. This is not the rule of law – it is the rule of judges masquerading as the rule of law.
The Second Amendment’s Purpose
In all cases, however, it must be remembered that the Second Amendment did not grant the American People the right to keep and bear arms — because a government which grants a right can take away that right. Rather, the Second Amendment recognized and protected the People’s God-given, inherent, pre-existing right to keep and bear arms. As the Declaration of Independence makes clear, all men “are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Life, liberty and happiness cannot exist without the means to defend them, which means the right to keep and bear arms. William Blackstone thus called self-defense “the first law of nature,” and early American jurist St. George Tucker described the Second Amendment as “the true palladium of liberty.”
As the rights that the Second Amendment protects pre-exist any government, and were made part of the U.S. Constitution by the People acting “to secure these rights,” they necessarily trump the view of any president, legislator, or even judge.
Naturally, governments do not like to allow their citizens the right to resist their power — which is exactly why the ability to resist is so important. St. George Tucker warned: “The right of self-defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible … and [when] the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”
The protection of liberty thus requires eternal vigilance in protecting the Second Amendment, lest we find ourselves ruled by those who scoff at the notion of God-given liberties and who prefer to wield power over their constituents rather than protect their freedom.
Gun Rights in the 2010’s
In terms of legislation at the federal level, since the Supreme Court decided District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), there has only been one brief two-year span that Republicans controlled both houses of Congress and the Presidency — after the 2016 elections. Sadly, virtually nothing was accomplished to advance gun rights during that time — especially with the likes of House Speaker Paul Ryan in charge.
Then, in the wake of the 2017 Las Vegas shooting, President Trump badly disappointed gun owners with his order to the Bureau of Alcohol, Tobacco, Firearms and Explosives to re-classify bump stocks as machine guns. GOA and GOF filed suit challenging that decision even before it went into effect, and the case is still pending, now in the U.S. Court of Appeals for the Sixth Circuit.
At the state level, there have been wins and losses since Heller and McDonald. With respect to concealed carry, we have added more than a dozen additional “constitutional carry” states where no permit is required, and more “shall-issue” states where an applicant for a permit does not need to demonstrate any particular need. But we also have seen more states adopt “red flag” laws, and restrictions on “scary”-looking semi-automatic rifles (termed “assault rifles”) and standard capacity magazines (a/k/a “high capacity magazines”).
Judges & Lawyers
But while we have always known that the anti-gun forces are only one election away from being able to implement their agenda on a nationwide basis, at least when the Supreme Court decided Heller in 2008 and McDonald in 2010, gun owners began to have the hope that the judiciary would be at least somewhat on our side. That has not turned out to be true.
Make no mistake about it, while tens of thousands of lawyers throughout the country are pro-gun, the group from which the federal judiciary is selected is overwhelmingly anti-gun.
First, many federal judges appear to be inherently hostile to gun rights. The Trump appointed judges have been the best, while lots of Reagan, G.H.W. Bush and G.W. Bush judges have been disappointing. Don’t even ask about the Clinton and Obama judges. While there is a reasonable chance that a Republican-appointed judge will respect Second Amendment rights in a given case, Democrat-appointed judges — almost without exception — have voted to uphold nearly every Second Amendment infringement that crosses their bench. Those aren’t good odds.
Also consider the fact that, before Heller was decided by the Supreme Court, only the Fifth Circuit has come to the most basic conclusion that the Second Amendment protects the rights of individuals. Prior to Heller, other courts all bought into the insane “collective rights” theory — that the Second Amendment was designed only to protect the power of state government to form National Guard units.
Second, many federal judges were former prosecutors, who think of guns in the context of violent felons. Other judges are educated at prominent, leftist law schools, or come from big city law firms, neither of which appreciate gun rights. Make no mistake about it, while tens of thousands of lawyers throughout the country are pro-gun, the group from which the federal judiciary is selected is overwhelmingly anti-gun. The courts in which they sit are located in urban areas protected by armed Federal Marshals, and their social circles often consist of wealthy urbanites. As a result, most federal judges seem to be profoundly ignorant of all things firearms related. It would be interesting to learn how many of them have ever shot a firearm — before ruling on whether firearms can be restricted. Listening to appellate judges attempt to pose intelligent questions about firearms during oral argument is often a painful experience.
Third, federal judges are much like others in government, in that they like to wield power. If you tell a judge that he must apply clear constitutional standards to decide a case, it diminishes his power. But if you instead invent atextual “interest balancing” tests, the judge feels empowered to use his personal judgment to balance the public safety interest against the private interest in owning firearms. And what could be more important than public safety (which would seem to be more of a joke every day, as big city mayors issue stand-down orders to police)? Consider the timidity of Fourth Circuit Judge J. Harvie Wilkinson who, paralyzed by fear, refused to address the issue as to whether Second Amendment rights exist outside the home, because he did “not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights.”
Finally, all too many lawyers arguing gun cases have fallen into the trap of arguing that Second Amendment rights should be decided by what Justice Scalia and the Heller majority rejected as “judge-empowering interest balancing” used in deciding First Amendment cases. These lawyers argue that certain gun rights are “fundamental” (conceding that some are not), or that certain rights are “core” rights (conceding that some are not). They urge courts to employ “strict scrutiny,” ignorant of the fact that the Supreme Court first applied what it then called “the most rigid scrutiny” test in the Korematsu case, approving FDR’s executive order placing tens of thousands of Japanese Americans into “relocation camps.”
Justice Scalia rejected all interest balancing tests in Heller, but these lawyers are rejecting that invitation to argue “text, history, and tradition” — which gives us the best chance of victory. Today, most federal judges have rejected Justice Scalia’s majority opinion and adopted the balancing tests urged by Justice Breyer in his Heller dissent. A world turned upside down!
So there you have it. Since Heller was decided, gun rights have faced down a perfect storm in the federal courts: anti-gun judges picked from a left-leaning legal elite, selected by Presidents who were only slightly pro-gun to begin with, deciding cases with no real understanding of firearms, and who prefer to exercise discretionary power rather than applying clear constitutional standards, all the while being led by lawyers who fall back on familiar First Amendment balancing tests rather than argue the Heller decision as it was written. What else could you expect?
Even though this article has focused on the negative, there is hope — and there is a way forward that takes advantage of our strengths — including the new generation of Trump-appointed lower court judges. A proposed strategy for gun owners will be the subject of Part Three.
John Velleco is the Executive Vice President of Gun Owners of America, a grassroots lobbying organization with more than two million members and supporters nationwide.