Lyle Denniston, Constitution Daily's Supreme Court correspondent, looks at reasons why it seems to be a constitutional reality that the Second Amendment is not likely to go back to protecting only a collective right to have guns.
THE STATEMENTS AT ISSUE:
“By the end of Hillary Clinton’s first time in office, two out of every three federal judges will have been appointed by Democrat presidents. Who knows how many Supreme Court Justices she will appoint? But her aim is clear. She will appoint judges who will overturn D.C. v. Heller; that would strip Americans of their [Second Amendment] rights – and maybe even their guns.”
– Excerpt from a press release August 10 by Rick Manning, president of Americans for Limited Government, a conservative political advocacy group based in Fairfax, Va., commenting on remarks by Republican presidential nominee Donald Trump.
“Hillary Clinton wants to essentially abolish the Second Amendment. And if she puts Supreme Court Justices on, she will decimate your Second Amendment.”
– Excerpt from remarks by Donald Trump during an interview August 9 with Sean Hannity on Fox Television News.
WE CHECKED THE CONSTITUTION, AND…
The First Amendment provides ample room for the nation to discuss the Constitution, and what it should or should not protect. For decades, in America’s public conversation, during political campaigns and otherwise, a frequent constitutional topic has focused on the meaning of “the right to keep and bear arms,” protected since 1791 by the Second Amendment.
The discussion has grown more intense in the eight years since the Supreme Court first interpreted that Amendment to protect a personal right to have a gun for self-defense. Up to that point, the dominant thought – although vigorously contested – was that the Amendment only protected a community’s collective right of self-defense, as with the colonial militia, or with the modern National Guard.
Whatever the political conversation may be about that 2008 decision in the case of District of Columbia v. Heller, it is a constitutional reality that the Second Amendment is not likely to go back to protecting only a collective right to have guns. There are several compelling reasons why not.
Perhaps, the most important reason is that the Supreme Court has never once overturned one of its own decisions that expanded the meaning of a right that was written explicitly in the Constitution. (Even the two most infamous decisions in the court’s history, the pro-slavery decision in Dred Scott v. Sandford in 1857 and the pro-segregation decision in Plessy v. Ferguson in 1896, did not undo rights that had their origins in Supreme Court decisions.)
The Supreme Court must have very strong reasons for reversing any of its constitutional decisions, on any subject. When that has happened, it usually has been because the court came to the conclusion that the earlier decision was simply not working out the way they had previously thought, or, more broadly, that the prior decision was simply flat-out wrong as an interpretation of the Constitution (for example, Brown v. Board of Education, overturning the Plessy decision.)
There is absolutely no indication that the current Justices harbor any sense that the Heller decision is failing to work as a constitutional shield for personal gun rights. In fact, as recently as last March, the court relied entirely on that ruling in declaring that the Second Amendment includes a personal right to have a “stun gun” for self-protection. There was not a single dissent.
And, of course, the court has absolutely no power on its own to abolish an existing amendment and the right it protects. It can interpret the words, but it can’t erase them.
Among lower federal court judges, they have no authority to modify or cast aside a Supreme Court decision like the gun rights decision in the Heller case. A Supreme Court decision is binding on them. Those judges can interpret what that decision means, but they can’t erase it.
Over the years since 2008, lower courts have generally given state and local government fairly wide authority to regulate guns – such as banning high-capacity assault rifles. The Supreme Court has largely left the lower courts with wide freedom to have the last word on the scope of gun rights, but that freedom does not include anything close to a power to abolish those rights.
In addition, only once in history has Congress ever approved a constitutional amendment to take away a right that the Supreme Court had found to be in the Constitution. That was the Eleventh Amendment, taking away the rights of citizens to sue in federal court against a state where they did not live.
And only one of the amendments – the Eighteenth Amendment, imposing a nationwide ban on liquor sales – has ever been overturned by a later change in the Constitution (the Twenty-first Amendment, ending Prohibition). And that restored a right that Americans had lost – legal access to liquor – rather than ending or diminishing it.
The overall lesson that can be drawn from these constitutional realities is that the Constitution when it comes to individual rights, appears to operate most of the time as a one-way ratchet: constitutional rights are expanded, not contracted.
And that might be exactly what the Founding generation had in mind in drawing up the Constitution in the first place. Recall that Alexander Hamilton, writing in Federalist Paper No. 78, said that in a government in which the departments are separated from each other, “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution, because it will be least in a capacity to annoy or injure them.”
Further, recall that the Constitution might not have been ratified at all had it not been for the promise that it would have a Bill of Rights added to it at the earliest possible opportunity.
The Founders may not have envisioned the Second Amendment in its modern form, as the guardian of an individual right to have a gun, but it is far from a sure thing that they meant to forbid it from developing. Nor did they envision that once expanded in that way, they would have felt it proper to take it away. If the people wanted to abolish a broader right, the Founders provided the means: a formal amendment. And, as a political reality of today, that is not going to happen.
