Man Who Failed to Rewrite Second Amendment Asks SCOTUS to Finish the Job

We're probably going to see well over a dozen amicus briefs filed with the Supreme Court this week in support of the "assault weapon" bans being challenged in Viramontes v. Cook County and Grant v. Higgins. The deadline to file is this Wednesday, and the first brief to officially be received is now online and ready to be perused. 

I can only hope that every amicus brief that follows is as bizarre as the one submitted by attorney David A. Robinson, but he's set a pretty high bar. 

Robinson's argument goes something like this: I tried to start a grassroots campaign to amend the Constitution and update the language of the Second Amendment that went nowhere, so now the Court should step in and declare that the Second Amendment's prefatory clause is "extinct," and the right to keep and bear arms extends solely to self-defense and hunting for food, not any other lawful purpose. Also, a purely hypothetical conversation between an imaginary 9-year-old girl and her equally imaginary teacher proves that the Second Amendment does not protect semiautomatic firearms.

A sample:

Jane: “Can a gun shoot 30 people in 30 seconds?”

Teacher: “Guns don’t shoot people. People shoot people. A gun is an inanimate object. It can’t do any harm itself. Yes, a rifle called an AR-15 can enable the rifleman to shoot 30 people in 30 seconds.”

Jane: “Why do they allow a gun like that? Why does anyone need a gun like that?”

Teacher: “The Second Amendment to the U.S. Constitution says you have the right to keep and bear arms and that no one can infringe on that right. Guns are arms. Some people have AR-15s for self-defense. Some have AR-15s to hunt animals for

food. Some have AR-15s because AR-15s are fun to shoot.”

Jane: “We kids have to hide in a closet so grownups can have fun?”

Teacher: “The Second Amendment says what it says. It’s our constitutional right.”

Jane: “Can I have fun shooting an AR-15?”

Teacher. “No. You’re only 9. An AR-15 is a dangerous weapon. It can shoot 30 people in 30 seconds. Only adults can shoot an AR-15.”

Jane: “I thought you said guns don’t shoot people. May I read the Second Amendment?” 

Robinson's legal brief already has more holes in it than a block of Swiss cheese, but the fact that he apparently believes an imaginary conversation between two imaginary people constitutes a compelling constitutional argument is something else entirely.

Of course, when you're writing both sides of a conversation, it's pretty easy to make sure that one of your imaginary characters comes around to your point of view. I'm a little surprised Robinson didn't have Jane's teacher burst into tears, renounce her support for the Second Amendment, and immediately join Moms Demand Action.

Amazingly, the fictional exchange isn't even the strangest part of Robinson's brief. That honor belongs to his argument that because he couldn't convince Americans to amend the Constitution, the Supreme Court should essentially do it for him.

Robinson says he spent $5,300 advertising his self-published book and proposed 28th Amendment on Amazon, along with another $1,000 or so on Facebook ads. He even reached out to members of Congress, President Joe Biden, Vice President Kamala Harris, and eventually President Donald Trump in hopes of finding someone willing to champion his proposal.

None of them took the bait. Robinson even suggested to Trump that backing his amendment could help the president win the Nobel Peace Prize, but apparently that wasn't enough to seal the deal.

Now, you might think that Robinson's inability to generate support for his proposed amendment would be a pretty good indication that the American people aren't interested in rewriting the Second Amendment to suit his preferences. Robinson, however, has reached a different conclusion.

One reason it was unsuccessful is that people cannot agree on what the new amendment should say. Therefore, it is the role of this Court to pronounce what is, and is not, extinct about the Second Amendment. This Court should not expect the American people to do so.

That's quite a leap, isn't it? The Founders deliberately made amending the Constitution a difficult process, requiring overwhelming support from Congress and the states. Robinson tried to generate support for changing the Second Amendment and failed, so now he wants nine unelected justices to accomplish what he couldn't through the process actually laid out in the Constitution... and he wants the Court to do so based on a theory that the militia is essentially extinct, despite acknowledging in his own brief that federal law still defines the militia and identifies who belongs to it.

Robinson also compares magazine-capacity restrictions to speed limits on highways and, in one particularly tortured analogy, likens the Second Amendment's militia clause to Major League Baseball's former exclusion of Black players. Apparently, the constitutional right to keep and bear arms and baseball's shameful history of racial discrimination are comparable because Robinson considers both to be outdated.

There's also the little matter of his assertion that the Supreme Court should treat semiautomatic firearms the same way it treated abortion in Dobbs: as something the Constitution doesn't protect, leaving lawmakers free to prohibit or permit them as they see fit.

His argument conveniently ignores the fact that the Second Amendment expressly protects the right to keep and bear arms, while the constitutional dispute in Dobbs concerned an unenumerated right. He also overlooks the Supreme Court's recognition in Heller that the Second Amendment extends to arms in common use for lawful purposes, a category that unquestionably includes semiautomatic firearms, even if the justices have yet to explicitly decide whether bans on those arms are constitutional.

Robinson is certainly entitled to his opinions, and honestly, I'm thrilled that he decided to share them with the rest of us. I needed a good laugh to start my work week. 

However, failing to persuade the American people isn't a constitutional crisis requiring the Supreme Court's intervention. It's simply what happens when you propose a goofy idea that falls flat. 

The justices have some legitimately serious constitutional questions to resolve in Viramontes and Grant, including whether the government can prohibit Americans from possessing some of the most commonly owned firearms in the country. Settling an imaginary argument between a 9-year-old and her teacher, declaring half of the Second Amendment extinct, or rescuing a failed constitutional amendment campaign, on the other hand, aren't likely to get much support even from the likes of Justice Ketanji Brown Jackson.

Robinson may not have succeeded in changing the Constitution, but he has managed to pen the single weirdest amicus brief I've seen in more than 20 years of covering Second Amendment cases. With Wednesday's filing deadline still ahead of us, I'm keeping my fingers crossed that someone will be able to top it, but I'm not holding my breath. 

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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