Since leaving the Duke Center for Firearms Law, professor Jacob Charles has become increasingly outspoken in his criticism of the Supreme Court’s Second Amendment jurisprudence.
In a new piece at Slate, Charles has turned his criticism towards the plaintiffs challenging semi-auto bans in Cook County, Illinois and the state of Connecticut. While most of his column deals with their arguments, it’s also clear he has a problem fighting these bans in the first place.
In his view,” [g]enerations of ordinary citizens fought for these assault-weapon prohibitions in the wake of tragic killings on a mass scale.” But apparently “ordinary citizens” weren’t opposed to them. No, Charles says it was “gun-rights groups” who stood in opposition, apparently ignoring the fact that those groups are comprised of ordinary Americans.
The most galling part of their argument is the recurrent invocation of—and self-righteous cloaking of their argument in—the language of democracy. “The decision whether a type of arm is too dangerous for ordinary Americans to possess,” they wrote, “is one that the people are entitled to make, not one that courts are empowered to make for them.” They say this, to be clear, in a brief asking the judges of the Supreme Court to make the decision about what weapons can be possessed over the decision of voters. Because the lower courts upheld these laws, the challengers want the justices to tell the citizens of Connecticut, Chicago, and other jurisdictions like California and New York that they cannot make fundamental judgments about public peace and safety.
Later in the brief, the challengers again assert that “whether the danger posed by a particular type of firearm outweighs its utility for lawful purposes is a decision for the American people to make, and judges are not authorized to second-guess that decision.” Yet their precise argument depends upon judges second-guessing—indeed, overruling—the decision that millions of those American people made about these weapons. It seems that judges are empowered to second-guess the decision of the American people if, and only if, gun-rights proponents don’t like it. After all, the American people voted for these laws in more than a third of the country. Connecticut citizens saw an AR-15-style weapon slaughter innocent 6-year-olds and acted to expand their law. The challengers, on the other hand, would have the Supreme Court foreclose that pathway of democratic choice.
It’s strange that Charles finds this argument so galling, when the challengers to these gun bans are basically just reiterating what the Supreme Court said in Heller about the District of Columbia’s ban on handguns.
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.
Or, as Justice Alito put it in Wolford, “Merely local attitudes can neither shrink nor inflate the meaning of fundamental Bill of Rights guarantees that apply to the States through the Fourteenth Amendment.”
In our country, democratic authority is substantial, but it’s not entirely open-ended. Constitutional rights impose limits on what majorities may enact. That principle is nothing new, and it certainly shouldn’t be a foreign concept to a law professor like Charles.
He contends, though, that the challengers’ argument “distorts the concept of democracy to cloak oneself in the rhetoric of protecting decisions by ‘the people’ while urging an insulated cadre of educated attorneys to tell the parents who buried their children and then devoted their lives to the prevention of gun violence to shut up and sit down,” that their voice and their vote “do not matter here.”
It’s not that their votes and voices don’t matter. It’s that the constitutionality of a law doesn’t depend on the amount of conviction, grief, or political support behind it. The whole point of an enumerated right is that there are limits on what government may do even when a majority believes otherwise.
I know that Charles can’t stand the “text, history, and tradition” test that the Supreme Court has instructed courts to use when determining the validity of modern gun control laws. After reading his piece, it’s hard to square his conception of democratic authority with Heller‘s central premise that the Second Amendment protects an individual right that legislatures cannot simply balance away.
Like it or not, though, those rights are real (and fundamental), and that takes certain policy choices off the table, even if they’re supported by a majority of voters in a particular state or across the nation. That principle is nothing new. Brown v. Board of Education didn’t hinge on whether school segregation was popular with voters in Virginia, Topeka, Kansas, or anywhere else. We don’t submit our constitutional rights to a referendum every time someone wants to exercise them.
The Constitution provides guardrails, and the Bill of Rights establishes boundaries that even democratically elected governments cannot cross.
Jacob concludes his piece with the hope that “there are enough Supreme Court Justices still willing to don the humility required to let the people remain their own rulers.” I’m not particularly concerned about that. My hope is that there are enough Supreme Court justices who are willing to recognize that the people already exercised their sovereign authority when they adopted the Constitution and its amendments. If we want to change the boundaries of an enumerated right, Article V of the Constitution gives us a way to do it. Simply pretending those boundaries disappear whenever a legislative majority finds them inconvenient, though, is off the table.
Editor’s Note: The radical Left will stop at nothing to enact their extreme gun control agenda and strip us of our Second Amendment rights.
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