WaPo Columnist: If We Packed SCOTUS We Could Ban Handguns

WaPo Columnist: If We Packed SCOTUS We Could Ban Handguns
(AP Photo/AJ Mast, File)

It’s not exactly a secret that anti-gun activists would love to overturn the Heller decision that recognized the individual right to keep and bear arms and struck down Washington, D.C.’s ban on handguns, but rarely are they so vocal about it as Aaron Belkin, the director of the pro-court packing group Take Back The Court was in an interview with the Washington Post‘s Paul Waldman on Wednesday. Belkin argued that with the current Court in place, some “comprehensive gun safety” legislation is off the table. What does he consider “comprehensive gun safety?” A total ban on handguns.

Belkin notes that what constrains policy ambition is the belief that in some future litigation the court’s conservatives will strike down whatever people might be considering — a limit on how many guns you can buy in a month, or where you can take your AR-15 — so the real fear is the one created by the prospect of what they might do.

The result is that those who want more gun safety measures constantly trim their sails. That includes Democrats (and a few Republicans) at the state and federal level, who would support meaningful gun legislation but decide not to bother, since they think the Supreme Court will just strike it down. It includes even gun safety advocates, who “continue to work on very important but very partial solutions,” Belkin notes.

So while those advocates should be the source of sweeping, ambitious ideas, they wind up arguing for more modest measures like universal background checks that are supported by almost everyone and would likely produce real but relatively small reductions in violence.

“The reason you don’t have thought leadership on comprehensive gun safety is because of the threat of fatal litigation,” Belkin says.

By comprehensive gun safety, Belkin means measures like bans on handguns — in other words, changes that you see in other countries but that go way beyond what almost anyone even suggests in America.

“What every other western democracy has in place would work here,” he says.

Whatever the political hurdles, those sorts of ideas should at least be part of the discussion. But as Belkin argues, the specter of a conservative Supreme Court striking them down ensures that they don’t even get debated.

Where to begin with this nonsense? Okay… the reason why “comprehensive gun safety” proposals like a total ban on handguns are off the table is because a total ban on handguns was challenged in court and SCOTUS ruled it to be unconstitutional. There’s no “threat” of fatal litigation. The issue’s been litigated, and Belkin’s side lost the argument.

The court of public opinion has also had its say. The first big national gun control group was called the National Council to Control Handguns, which later became Handgun Control Inc. and started working with the National Council to Ban Handguns in the early 1980s before the groups split apart. Handgun Control Inc. became the Brady Campaign, while the National Council to Ban Handguns changed its name to the Coalition to Stop Gun Violence.

A total ban on handguns was the goal of those groups, but as they began to lose ground in the early 1980s (only Chicago joined Washington, D.C. in banning handguns, for example) they began to shift their messaging to one not of prohibition, but of “regulation,” which, of course, would include a total ban wherever possible, including eventually at the federal level. The messaging changed. The goal did not.

And here we are decades later, in a country where not only do we have more than 100-million gun owners, but more than 20-million concealed carry licensees, 42 states with shall-issue concealed carry licenses, and 18 states that allow for legal gun owners to carry without a license or permit from the state. A lot of that progress came before the Heller decision, by the way, because it’s not just the words on a piece of paper that protect our right to keep and bear arms. Exercising that right helps to defend it too. It’s hard to argue that the Second Amendment is a dead letter when a growing number of us are embracing our right to keep and bear arms, but if Belkin were to get his way, a Supreme Court packed full of anti-gun justices would make that argument and deliver an opinion overturning the Heller decision.

When Belkin says that what other democracies have in place would work here, both he and Washington Post columnist Paul Waldman are forgetting something very important. No country on earth has implemented a ban on handguns that would impact as many people as it would in the United States. Most countries also don’t declare that the right to keep and bear arms is now a privilege, unless that country has descended into totalitarianism.

Most European countries have long restricted the right of the people to bear arms, as James Madison noted in Federalist 46. In fact, Madison said that Americans “possess the advantage of being armed” over the citizens of almost every other nation on earth. We’re not like other countries, and we never have been. Declaring that Americans don’t actually have the right keep and bear arms in self-defense would not go over well among a sizable portion of the country, but Belkin and Waldman both simply pretend that’s not the case.

Belkin wants far more than a ban on handguns. In fact, his ultimate aim is nothing less than the establishment of one-party rule in the United States. From his article entitled “Court Expansion and the Restoration of Democracy: The Case for Constitutional Hardball”:

Neither electoral politics, norms preservation, nor modest goodgovernment reform can restore the political system because they cannot mitigate the primary threat to the American democracy, Republican radicalism. Those who believe otherwise fail to appreciate how and why radicalism will continue to impede democratic restoration regardless of what happens at the ballot box, misdiagnose the underlying factors that produce and sustain GOP radicalism, and under-estimate the degree of democratic deterioration that has already taken place. Republicans do not need to prevail in every election to forestall the restoration of democracy or to prevent Democrats from governing.

The only viable path for restoring the United States political system requires Democrats to modify Senate rules that allow obstructionism, expand federal courts, and un-rig the political system. Unless Democrats enact all three parts of this agenda, democracy probably cannot be revived. Expanding the courts probably will be necessary to un-rig the system unless the current Supreme Court tolerates democratic revitalization, an unlikely prospect. To pass legislation to un-rig the system and expand the courts, however, Democrats will need to modify the Senate rules. Finally, if Democrats pursue modest good-government initiatives but forego aggressive reform, they will fail to un-rig the system. Thus, Democrats need to enact all three parts of the democracy agenda, not just one or two.

As if that wasn’t blatant enough, consider this passage.

I would respectfully submit that American democracy has already effectively died because the Republican Party has burned most of our normative house to the ground. The United States will continue to refer to itself as a constitutional democracy and to hold elections, and Democrats will occasionally win those elections, to be sure. But here is the three-part catch: (1) As a partial result of gerrymandering, voter suppression, and dark money, Democrats require landslides to prevail in federal elections; (2) Even when Democrats do prevail in federal elections, unprecedented GOP obstruction prevents them from getting much done; (3) Even if and when Democrats do manage to enact a handful of important regulations and laws, the stolen Supreme Court will curtail or overturn most of them.

In other words, Belkin’s arguing that it’s okay to destroy the fundamental fabric of our Republic because in his opinion, Republicans have already done so. That’s why he can claim that packing the court and nuking the filibuster is “un-rigging the system” as opposed to what it actually is; establishing permanent one-party rule in the United States.

Ultimately, the threat posed by court packing goes far beyond overturning the Heller decision. Taken in conjunction with the removal of the filibuster in the Senate, it would be the ultimate political power grab and really would mean the end of the Republic as we know it. Even if by some miracle Republicans were to take power in the next election after Democrats “reformed” the system to ensure a majority, I think the desire for revenge would likely outweigh the responsibility of restoring constitutional norms.

I’d like to think that this idea is going nowhere, but when it’s given serious credence in the pages of the Washington Post you can hardly call it a fringe theory promoted by just few oddball lefties. Unfortunately, I think there’s a growing sense of quiet panic among many Democrats that Republicans will take back at least the House in next year’s elections, and that their window for change is closing by the day. Of course the fact is that if their ideas were more popular, they’d have the votes they need without having to nuke the filibuster and establishing pure majoritarian rule, but that’s not the case.

We live in a roughly 50-50 nation, at least by the broadest definitions of left and right, and if 50-percent think they can run roughshod over the other 50-percent and try to establish one-party dominance in all branches of the government without an equal and opposite response, they know nothing about history or the psychology of the American people. Aaron Belkin’s idea would take this country and all of us who live here to a truly terrible place, and the Washington Post should be throwing cold water on the idea, not pouring gas onto Belkin’s totalitarian fire.

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