The Bulletproof Legal Architecture of Guns
It was with words that a gun claimed higher stature in our laws than an abortion patient.
PÉSAME.
It’s the word that echoes within me while listening to an NPR newscast on a morning walk this week. The journalists are covering the tragic massacre of schoolchildren in Uvalde, Texas, and a vigil to remember the 19 children and two teachers who were fatally shot on Tuesday afternoon. A quivering voice says it in the ambient audio. The word haunts me because it means that the organizers decided there would be enough Spanish speakers in attendance that it was worth finding a translator. The same cannot be said about the press conferences where authorities grasp at explanations.
“Mi sentido pésame” is what you’re supposed to say in Spanish when you’re offering your condolences to someone else. Literally, pésame translates to “it weighs on me.” In English, the term “condolences” evokes a sense of pain, of grief. In Spanish, we recognize that the loss of a person weighs on all of us.
Those of us whose communities have been affected by gun violence—these days an ever-growing number—know that the frequency of these killings do not somehow spread the weight of the loss among the population. Each killing makes the soul heavier as we remember and re-live what it was like to learn it was suddenly our turn to grieve.
On June 12, 2016, I woke up to a Facebook notification that asked me if I was “safe” in the “Orlando shooting,” even though I was miles away in Washington, D.C. This was before we learned that the bodies of 49 brown-skinned dancers lay motionless on a nightclub floor. This was before the nation associated the name Pulse with sorrow. And this was before we knew the laws would remain the same.
Or perhaps, we knew it then, too, but hope had not been extinguished.
The words we choose when we talk define the culture we exist in and shape the rules we abide by. In the wake of this shooting, I have noticed old efforts to keep politics out of a tragedy that was facilitated by our political system, as well as new outrage at the inaction of many elected officials. Understandably, many vocalize their ire directly at politicians — like Beto O’Rourke did at Governor Greg Abbott’s press conference. Some take to the pen to decry the hypocritical calls for civility in deeply uncivil times. A third group is excoriating the structural political barriers that keep solutions such as assault-weapon bans (supported by two-thirds of Americans in a recent poll) from becoming law. The filibuster, and politicians’ reluctance to do away with it, guarantees a state of affairs in which minoritarianism reigns supreme. When that minority vetoes the majority’s overwhelming desire for change, it also transforms our political system into an anachronistic one.
But as I was saying about words, there is one more reason why our manufactured sanctity of guns won’t change: Courts all over the country have bought into the rhetoric that the Second Amendment is the subject of “second-class” treatment. In a 2020 speech, Justice Samuel Alito told a national convention of The Federalist Society that the Second Amendment had become “the ultimate second-tier constitutional right.” Justice Clarence Thomas has similarly called the Second Amendment “a constitutional orphan.” These phrases, though they may seem like mere rhetorical flourishes, actually have a profound effect on the minds of other judges. They replicate.
Courts all over the country have bought into the rhetoric that the Second Amendment is the subject of “second-class” treatment.
We didn’t know how much influence that idea of gun ownership as a “second-class” right had—until now. In a new study published in the Georgetown Law Journal, where I used to be an editor, law professors Eric Ruben and Joseph Blocher examined the frequency with which gun ownership advocates and their lawyers cited that notion in their cases. In the roughly eight-year period that followed Heller v. District of Columbia (the Supreme Court case that first construed gun ownership as an individual, not collective, right), Ruben and Blocher found that the “second-class” notion had been cited in 174 argument briefs, appeared in 22 judicial opinions, and garnered 55 votes from judges.
The importance of the study lies in the fact that its authors did not focus on whether the Second Amendment is actually being treated as a second-class right, but on the extent to which judges believed it was, and how those beliefs passed into law through their court decisions.
To wit: after the Supreme Court decided in Heller that the Second Amendment protected an individual right to bear arms, advocates began filing lawsuits to fight over whether the Second Amendment only applied to the federal government, or also to state and local governments (in legal terms, whether the Second Amendment was “incorporated” against the states). One of those cases, McDonald v. City of Chicago, made it to the Supreme Court. It would not surprise you to learn that the National Rifle Association wrote a petition asking the Court to hear that case. In it, the NRA wrote:
The Second Amendment does not represent an inferior right which a court may subjectively relegate as beneath the usual rules of incorporation. “To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it. This is to disrespect the Constitution.” No constitutional right is “less ‘fundamental’ than” others, and “we know of no principled basis on which to create a hierarchy of constitutional values . . . .”
When the case was decided, Alito wrote this in his opinion:
“[Chicago], in effect, ask[s] us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.”
The “second-class” claim then proliferated in lower courts, allowing advocates of gun ownership to do two things. First, they could argue to Republican-appointed judges that the change they were arguing for (that is, the expansion of opportunities to purchase, carry, and brandish guns) was not based on their own personal preferences. It was a matter of fairness. Second, they could argue to higher courts, if they lost below, that the lower-court judges were weakening the Second Amendment with respect to other constitutional rights, making their cases about institutional uniformity instead. Lower-court judges, afraid of being overruled on appeal, then declined to rule against the Second Amendment at all.
This is how a gun claimed higher stature in our laws than an abortion patient. This deference for the Second Amendment is what many scholars see as the triumph of the conservative legal movement, which has leaned on facially neutral theories like original public meaning and history to make people believe that the change being caused is no change at all, but a return to how things are really supposed to be. As Ruben and Blocher demonstrate, that trick works with judges. Meanwhile, judges have also effectively rendered ineffectual whole constitutional provisions, such as the privileges and immunities clause, even when Black people tried to use them to combat Jim Crow discrimination. Laws passed with the intent of protecting the public against police brutality are subject to qualified immunity. And Roe, a binding precedent, appears to be nothing more than a mere suggestion after Oklahoma enacted a total abortion ban this week.
As much as I might want to offer some words about resilience or wax poetic about hope, I chose to write about law today because any day soon, the Supreme Court will announce its decision in New York State Rifle & Pistol Association v. Bruen. The question in that case is whether New York, which has a 108-year-old law requiring gun owners to show “proper cause” to have a concealed-carry permit, is infringing on its citizens’ Second Amendment rights by requiring people to convince state officials that they have good reason to have concealed guns. The case may be decided on narrow grounds, but it could severely restrain states’ ability to regulate access to guns even if advocates persuaded lawmakers that they should. Mass shootings that target a specific racial group like the one in Buffalo and possibly Uvalde—which legal thinkers like CCR’s Angelo Guisado and Emory’s Carol Anderson remind us are at the genesis of the nation’s fixation on preserving a “militia”—may yet become easier. Justice is supposed to be “blind,” but some judges cover their own eyes.
We are in sore need of new language. Ruben and Blocher (and multiple people on social media feeds this week) have argued elsewhere that the question of gun ownership is a question about democracy. In other words, what good is the right to protest when the other side brings assault rifles? What good is it that grocery stores don’t discriminate any more when Black shoppers are themselves the target of indiscriminate violence? And what good is the right of undocumented immigrants to attend public schools when their parents fear that ICE might deport them if they show up to the scene of a massacre?
It’s in these details that we capture the tapestry of lives seized from this world: the little girl whose first cell phone’s call log must have been a list of alternating “Mom” and “Dad” calls, but finally 911; the boy swiftly murdered by the gunman after police came into his classroom and said “if you need help, yell”; the husband whose heart, upon learning that his high school sweetheart had died, simply came to a sorrowful halt. As Tressie McMillan Cottom writes, “From Columbine to Emanuel African Methodist Episcopal Church to Sandy Hook, no one has mattered enough.” How quickly a childhood becomes its own aftermath.
One answer may perhaps lie in rethinking the American absolutism of constitutional rights. Jamal Greene has suggested that our disputes about rights have become exclusively zero-sum equations, in which one side necessarily wins and the other necessarily loses, leading to puzzling social realities in which stolen innocence is no match against an inanimate killing machine, both in fact and in law. Canada and Germany, for example, take a proportionality approach, in which courts require more important reasons to justify greater government intrusions on your liberty. Under that approach, it’s not about all guns or no guns, but about whether the state can justify a ban on AR-15 sales to 18-year-olds (it probably could) or a prohibition on Black Americans owning one registered and licensed handgun for self-defense purposes (it probably could not). In some Latin American countries, whose constitutions are more likely to be influenced by Indigenous thinking and traditions, bills of “rights” are frequently accompanied by bills of “duties” that citizens have to one another. One thing I know is we can’t figure this out without learning from other cultures.
In the meantime, a void the size of 19 children weighs heavy on my soul.
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Amazing article as usual, Jesus! Something that comes to mind whenever people argue against gun control is the concept of freedom. "Freedom" is thought of as a core value of the U.S. Yet, when I hear freedom mentioned, it is often regarded in terms of freedom from restrictions and controls, freedom from regulation. Is this freedom though?
A concept that stuck with me from my Bioethics of Disability class is how just freedom from restriction or 'liberty' is insufficient as a basis for human rights and flourishing.
If all freedom was just a lack of restriction, then a rock would be free. There are no laws forbidding what a rock can or cannot do, may or may not own. This rock however, cannot actually do anything at all. This rock is in fact not free.
To me freedom means not just 'liberty' but the ability to do the things one desires. It is to live a healthy and safe life and to pursue one's happiness -- if you will. If we are scared of our children being gunned down in their classrooms, if we are getting sick from a virus while dealing with an expensive and dysfunctional healthcare system, are we free? If one must sacrifice one's physical or mental health to make a living, are we free?
If the rights we had afforded to us only removed all restrictions. We perhaps are more like rocks after all. ¯\_(ツ)_/¯