The Supreme Court and the Second Amendment

The Second Amendment is, without question, the most infamous and vilified section of the Constitution today. Ask ten random people on the street to name what is discussed in Article I, Section 8, or the 21^st Amendment, or the 10^th Amendment, and most will stare at you blankly. But ask about the Second Amendment, and the majority of those same ten will likely know: “right to bear arms.”

It is under assault today—this many conservatives know. What they may not understand are the ways in which this assault directly relates to the Supreme Court. Until the landmark rulings of District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), there was no major Supreme Court ruling, in at least the past fifty years, which protected an individual’s right to bear arms. The Second Amendment was, in many legal circles, a dead letter, a law still technically on the books but no longer enforced or taken very seriously by anyone of consequence.

Then came the legal battles that eventually culminated in the Heller and Chicago decisions. Democrats were scandalized—but unlike other major decisions, from Roe v. Wade to Citizens United, they could not easily take a firm, united stand on the issue. The simple fact is that, whereas Americans are divided on abortion and suspicious of large corporations, they by and large love their guns. For hunting, for self-defense, for any other legal and ethical purpose for which Americans have been using guns for centuries. So Democratic opposition to the rulings had to be disguised, or at least toned down. Democratic Senators like Harry Reid needed to protect their favorable NRA ratings.

Under liberal pressure in the years since, that disguise has gradually been dropping. Hillary Clinton said in a debate last October that the she opposed the Heller decision because it made toddlers more likely to shoot themselves.

This was, obviously, nonsense. But it underscores how the gains of the last few years might be put at risk by the confirmation of just one additional liberal judge to the Supreme Court. Just as conservatives want to see Roe v. Wade overturned, so too do many liberals dream of the Heller and McDonald decisions also being overturned, and the Supreme Court declaring that the Second Amendment only applies to the National Guard and is a “collective”, rather than individual, right (their favorite kind).

And even without express challenges to Heller and McDonald, less ambitious liberals could still work through the courts to undercut the Second Amendment, piece by gradual piece. Both decisions allow that some gun control is constitutional, as long as those laws do not effectively deprive an entire class of people from exercising their constitutional rights. No Court decision has yet clearly defined what the constitutional limits on such laws truly are, beyond stating, as Heller and McDonald did, that an absolute ban on handguns is beyond the pale. That still leaves many unanswered questions, which liberals will seek to subvert for their own purposes.