The Second Amendment Is One Supreme Court Justice from Repeal

By David French

Tuesday, October 06, 2015

In August, my colleague Charlie Cooke wrote an epic rant daring the Left to stop talking about repealing the Second Amendment and start doing it. Introduce the repeal to Congress, work it through the states, and tell the American people what you want to do — take from them a fundamental, enumerated right from the Bill of Rights. As Charlie eloquently outlines, repealing the Second Amendment is an impossible task. Even worse for the Left, it’s political suicide.

But if the Supreme Court’s decision in Obergefell v. Hodges teaches us anything, it’s that the age of judicial supremacy means that five justices can amend the Constitution far more efficiently than Congress and the state legislatures. And right now there are clearly four Supreme Court justices who are committed to the absurd view that the operative clause of the Second Amendment — “the right of the people to keep and bear Arms, shall not be infringed” — doesn’t actually mean “the right of the people” and therefore doesn’t encompass an individual right to own a weapon, even for self-defense. This view defies history yet is received, conventional wisdom on the judicial Left, in much the same way that it’s received, conventional wisdom that the Constitution actually protects rights to abortion and gay marriage.

It is certain that the next Democratic nominee for the Supreme Court will adopt that same ahistorical view, and if that nominee replaces, for example, Justice Kennedy or Justice Scalia, then the five-justice majority in District of Columbia v. Heller will be gone. If that majority goes, then the next gun-rights case will transform the Second Amendment into nothing more than a historical artifact of the era when the militia consisted of able-bodied men with muskets over their mantles.

If Heller is overruled, then the regulatory state, in all its immense power, can launch a systematic, undemocratic effort to deter gun ownership even without true confiscation. The appeal of regulatory action is obvious. A Democratic president can use his or her left-wing bureaucracy to implement a host of regulations without an act of Congress and then veto any legislative effort to undo his or her reforms.

It’s easy to imagine the regulatory possibilities — regulatory action against ammunition; public-employee rules creating “gun-free employment communities” that prohibit or greatly restrict private gun ownership by public employees; aggressive regulatory action against various types of ammunition; OSHA rules that require employers to restrict employees’ gun rights on “work safety” grounds. The list could go on and on.

Further, in the absence of a federal constitutional right, gun ownership in the deep-blue states would soon become even more perilous. Chicago, Washington, and other major cities would re-implement and potentially enhance their previous draconian restrictions on law-abiding citizens. Where gun-control majorities exist, the legislative process would systematically limit gun rights. Where conservative majorities prevail, the Left-dominated regulatory process would rule. And the entire process would be backstopped by a federal judiciary committed to “social justice” at the expense of history, reason, and logic.

Conservatives comfort themselves with the idea that comprehensive gun-control efforts would spell electoral disaster for Democrats, much as they did in 1994. The difference, however, is that the Democrats have already suffered two 1994-scale electoral disasters — in 2010 and 2014 — but, thanks to the regulatory state and the federal judiciary, the Left’s power is largely unchecked. What it can’t implement through legislative processes, it’s largely implementing piecemeal through regulations and judicial decisions.

Moreover, the Left has become very effective at using a combination of social scorn, targeted litigation, and strategic regulations to define which Americans can participate fully in the marketplace, in government, and in academe. Social conservatives are all too familiar with the notion that universities, certain categories of public employment, and even entire industries are increasingly closed off — that they’re not welcome. And that’s despite the fact that we still (at least in theory) enjoy constitutional rights to free speech and free exercise of religion. Stripped of their individual right to bear arms, gun owners would be uniquely vulnerable as the next targeted population.

If you consider this alarmist, consider the 2006 case of Washington State University student Ed Swan. The university threatened Swan with sanctions, including potential dismissal from its teachers’-education program, in part because of his opposition to gun control. His department deemed that he did not have the “disposition” to teach young students while supporting gun rights. The university backed down after the Foundation for Individual Rights in Education (FIRE) exposed its actions (I was president of FIRE at the time), arguing that its “dispositions” mandates violated the First Amendment.

The 2016 election is vitally important on a number of fronts, but few Americans realize that the combination of judicial supremacy and the modern regulatory state can essentially repeal the Second Amendment and systematically roll back gun rights without a single act of Congress. Hillary Clinton has vowed to use executive action to roll back gun rights, and when that executive action includes not just regulatory authority but also Supreme Court nominations, American gun rights are in grave danger indeed.