Speak Up for the Second Amendment

Adam Carrington shares his thoughts in a recent article that originally appeared on FoxNews.com. Don't miss Adam on Tom Gresham's Gun Talk Radio.

The Parkland shooting has sparked anew the ongoing debate about the role of guns in our country. We are again confronting the challenge of remaining faithful to the unalienable right to life articulated in the Declaration of Independence – a challenge that the Constitution demands we protect from two angles. By seeking to “insure domestic tranquility,” the government possesses an obligation to protect us from violence, but by acknowledging “the right of the people to keep and bear arms,” it also recognizes the need for individuals to protect themselves by means of self-defense.

We must have a conversation about how to navigate the tension between these two realities. It should involve all actors within our society and within our government. President Trump is talking about it. Congress is talking about it. The media, educators and citizens are talking about it.

But one potential participant remains conspicuously silent: the United States Supreme Court. On February 20, the Supreme Court refused to hear the 9th Circuit case Silvester v. Becerra. That case concerned a California law requiring a ten-day waiting period before purchasing a firearm. Litigants challenged that this law should not apply to those who previously had gone through the process and now sought to buy an additional gun. The 9th Circuit had upheld the regulation.

Regardless of this case’s particular merits, the court’s denial represents a larger pattern. For nearly a decade, the court has refused to adjudicate the constitutionality of gun regulations in what approaches systematic fashion.

The justices’ reticence is both strange and problematic. It is strange in light of prior decisions. A decade ago, in the 2008 case of D.C. v. Heller, the Supreme Court interpreted the Second Amendment for the first time as protecting an individual right to own a gun. But far from making this right absolute, the court declared, through Justice Scalia, that limits existed to gun ownership.

What exactly were those limits? The court didn’t really say. Beyond affirming that “longstanding prohibitions”

could continue, Justice Scalia refused to give details. No need to do so, he said:

since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field…there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.

It seemed that the court, having established the baseline of an individual right, expected a series of future cases to draw the lines for how to balance gun safety and gun rights. The court did clarify, in 2010, that the Second Amendment applied to the states in McDonald v. City of Chicago. But that decision didn’t break much new ground on the content of the right itself. Instead, it merely kicked the can of further definition down the road. After that case, when given numerous options to further delineate the Second Amendment, the court has refused —again and again.

Beyond its incongruity, the court’s failure to define the scope of gun rights is incredibly problematic, quite simply because it leaves too much unsettled. Heller and McDonald opened up myriad questions about gun rights and their regulation but refused to settle on a standard by which to judge gun laws. This means that, absent further precedent, lower courts possess little guidance in how to adjudicate competing claims, which in turn has given rise to confusion. And as Justice Thomas pointed out when objecting to the latest court denial, there is a great disparity in the standards exercised by lowers courts in gun cases. While some judges seek to impose a more stringent standard on gun laws, others, like many on the 9th Circuit, adopt a “deferential analysis” that accepts as valid nearly any regulation.

The Supreme Court once argued that “Liberty finds no refuge in a jurisprudence of doubt.” That remains true for gun owners, who are subject to the accident of what lower court judge’s jurisdiction they happen to live in. It is also true for legislators, who are left without guidelines to follow when crafting legislation. But it is especially true for the victims of gun violence. Liberty does not find a refuge in a jurisprudence of doubt, and neither does life. Without further clarity about the Second Amendment, the students who were killed in the Parkland shooting will remain just as vulnerable as the day they walked into school.

The Supreme Court cannot and should not try to settle every detail of gun policy. But it should begin to fulfill the promise made in Heller. It should seek to further describe what it believes the Second Amendment protects for gun ownership and allows for gun regulations. It should police lower courts to hold them accountable to those standards. In so doing, it can make its own, needed contribution to the present conversation. It can bring the Constitution to bear in its own way in the gun debate. Above all, it can play a part in furthering the right which proponents of gun regulation and of gun protection both seek, a right that has been so desecrated by our seemingly endless school shootings: the unalienable right to life.

Adam Carrington is assistant professor of politics at Hillsdale College.