Could Breyer's final opinion be a "boon" to 2A supporters?

AP Photo/J. Scott Applewhite

Consider me unconvinced. In fact, were it not for the source, I’d dismiss the idea as laughable. But Hugh Hewitt is a smart guy, so I’m willing to at least listen to his pitch that retiring Supreme Court Justice Stephen Breyer could conclude his tenure on the Court with a curveball; authoring the majority opinion in the pending challenge to New York’s “may issue” carry laws.

That case, known as New York State Rifle & Pistol Association v. Bruen, would appear on the surface to be a decidedly odd fit for Breyer, but Hewitt argues that if the justice wants to leave the bench as something more than a “respected dissenter,” siding with the Second Amendment‘s right to bear arms would be a good way to do it.

This would be a clear departure from Breyer’s dissent in the 2008 Heller decision — the milestone ruling that the Constitution protects an individual’s right to bear arms. At that time, Breyer wrote that “Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limit­ing any legislature’s authority to regulate private civilian uses of firearms.”

“Specifically,” Breyer continued, “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.”

If that’s what Breyer thinks about the right of armed self-defense inside the home (and there’s no indication that he’s changed his mind since the Heller decision), it’s hard to imagine him embracing a reading of the Second Amendment that acknowledges and takes seriously the right to bear arms in self-defense in public, even if he wants to conclude his career on a high note.

It’s also impossible for me to imagine any Second Amendment activist being okay with a Breyer-authored opinion, even one that replaced the multi-tiered standards of review (rational basis, intermediate scrutiny, and strict scrutiny) with a text, history, and tradition test. Hewitt assumes that Breyer is willing to and capable of writing a decision that most gun owners would view as both “reasonable” and “compelling.” I think that’s a stretch for both sides, frankly.

This new “Breyer rule” would be a boon to Second Amendment advocates — creating some consensus on the court and a usable framework for what is indisputably a constitutional right continually under attack by means other than a constitutional amendment. At the same time, it would also be a balm to gun-control advocates to realize that a rule exists that would uphold bans on machine guns in private hands and some limits — reasonable “red-flag” laws,for example. The new standard would surround the Second Amendment with some court consensus on its reach, a “Breyer rule” that his conservative colleagues could agree would not have offended the Framers a bit.

Leaving aside the fact that the Bruen case deals with the right to bear arms in public, and not what kind of arms are protected by the Second Amendment, there is no ban on civilian ownership of machine guns. There’s a prohibition on most civilians purchasing machine guns made after 1987, but as long as you’re willing to pay the $200 tax stamp (and the five-figure cost of a pre-Hughes Amendment machine gun) and can pass the background check requirements, you’re good to go.

Frankly, any test that treats the Second Amendment seriously is going to have to wrestle with the fact that the text, history, and tradition of the right to keep and bear arms must protect those arms that are of most service and utility for militia members. And given that we’ve already seen gun control activists argue that AR-15s and other semi-automatic firearms should be regulated under the National Firearms Act because they’re “like” machine guns, I and most gun owners I know would hardly be satisfied or pleased with a SCOTUS decision that left open the door for any ban on commonly-owned or protected arms.

Similarly, how would the Court determine what makes a “red-flag” law reasonable or unreasonable? Is there anything reasonable about a court deciding (based on hearing from just one side) that someone poses a danger to themselves or others, and then simply taking their guns away while leaving the supposedly dangerous person to their own devices? Is there anything reasonable about a process that allows for someone to be stripped of their Second Amendment rights without ever being accused of a crime or adjudicated as mentally defective, even for a period of six months or a year?

I can’t imagine that many progressives are keen to see Justice Breyer even half-heartedly recognize the right to bear arms, and I know that most gun owners would view a Breyer-written majority opinion in Bruen as a horrifying possibility and the exact opposite of what we truly need: a Supreme Court decision that will compel not only the state of New York, but courts across the country to finally treat the Second Amendment as the fundamental (and fundamentally important) right that it is.

If Hewitt was looking to generate a reaction with his column, I think he hit the sweet spot, because both 2A activists and the gun control lobby are likely to have visceral opinions on his proposal. My own is that I don’t want to see Justice Breyer anywhere near the majority opinion in Bruen, and if he is, we’re not likely to get a decision that would be satisfying or satisfactory to Second Amendment advocates.