Trying And Failing To Make The Constitutional Case For Gun Control
Yale Law School students Joshua Feinzig and Joshua Zoffer may not be able to practice let quit yet, but that doesn’t mean they can’t argue in the court of public opinion, and the pair have put forward their best argument in favor of the constitutionality of gun control over at the Atlantic. Unfortunately for the two Joshuas, their argument isn’t good enough to rise above the Constitution and the Bill of Rights.
Feinzig and Zoffer stake their argument on a brief filed by March For Our Lives with the Supreme Court in the New York State Rifle & Pistol Association v. New York City case. That brief argues that, even though we have a Second Amendment, local jurisdictions should be able to pass virtually any gun control law because of public safety concerns. That’s not making a constitutional case for gun control, it’s making a case that the Constitution is subordinate to the whims of local lawmakers. In fact, Feinzig and Zoffer go so far as to claim that gun control laws represent a form of self-defense.
Gun-control advocates need their own constitutional narrative, one that incorporates a broader conception of self-defense into its vision. Since Heller, the Court has drawn a straight line connecting the broader, constitutionally grounded right to self-defense to the more specific right to individual gun ownership. But defense of oneself and one’s family can be pursued in a variety of ways. An individual right to gun ownership offers one path, deputizing all people to defend themselves with a firearm at their side. Gun regulation offers another such path to self-defense, one vastly more efficacious and preferred by the American public. It represents a mode of preemptive self-defense, whereby the state is tasked by its citizens with limiting access to deadly force.
The problem for the pair of future litigators is that the Second Amendment doesn’t mention self-defense. True, the Supreme Court ruled in Heller that the core function of the Second Amendment was to protect the ability to defend oneself in the home, but that doesn’t mean that’s where the right to keep and bear arms ends. As U.S. District Judge Robert Benitez put it in his decision blocking California’s ban on magazines over ten rounds:
The phrase “gun violence” may not be invoked as a talismanic incantation to justify any exercise of state power. Implicit in the concept of public safety is the right of law-abiding people to use firearms and the magazines that make them work to protect themselves, their families, their homes, and their state against all armed enemies, foreign and domestic. To borrow a phrase, it would indeed be ironic if, in the name of public safety and reducing gun violence, statutes were permitted to subvert the public’s Second Amendment rights – which may repel criminal gun violence and which ultimately ensure the safety of the Republic.
Judge Benitez’s argument hits at the crux of the position of Feinzig and Zoffer. You can’t infringe on the rights of individual Americans in the name of reducing “gun violence”, because those infringements may very well lead to individuals and the Republic becoming less safe. The pair of law school students don’t have a good answer to that argument, other than to claim that the Second Amendment prevents other constitutionally protected rights from being exercised.
In addition to self-defense, other obvious rights and interests of constitutional magnitude are imperiled by gun violence and vindicated by regulation. The right to assembly is put at risk when a single shooter can rain bullets on a peaceful political protest. Freedom of the press is undermined when published words can give way to mass murder, as occurred at The Capital’s Annapolis, Maryland, office in 2018. Other cherished constitutional interests, such as the freedom to vote or access to public education, cannot be secured when mass shootings are a constant specter outside polling places or at the schoolhouse gate. And this is to say nothing of the value of protecting life, a fundamental basis of the Constitution itself that is incompatible with an ever-expanding conception of the Second Amendment.
Feinzig and Zoffer get the argument backwards. The Second Amendment protects rights like the right to peaceably assemble, as well as freedom of the press. You can argue that destroying one constitutionally protected right will allow the others to be protected, but at that point you’re not arguing for the constitutionality of gun control laws, you’re simply arguing that the Second Amendment is a second class right, or not a right at all.