A specter is haunting the Supreme Court — disrespect for the Second Amendment. Perhaps you haven’t realized that the Supreme Court’s disinclination to expand on its landmark 2008 decisioncreating an individual right to gun ownership means that the justices are treating the Second Amendment as a “second-class right.” A “watered-down right.” A “disfavored right.”
If you are unaware of these outlandish claims, then you haven’t tuned into the rising chorus of judicial voices demanding more from the Supreme Court than gun fanciers already won in that intensely disputed 5-to-4 decision a decade ago, District of Columbia v. Heller.
Why is this happening, and why now? To understand why the “second-class right” meme is suddenly penetrating the judicial conversation, we have to begin with Justice Clarence Thomas. He is not the first member of the current Supreme Court to use the phrase; Justice Samuel Alito Jr. used it in his 2010 opinion that extended the analysis of the Heller decision, which had applied only to Washington, D.C., as a federal enclave, to the states. The court was being asked, Justice Alito wrote in McDonald v. City of Chicago, “to treat the right recognized in Heller as a second-class right,” which he said the court would not do.
But it is Justice Thomas who has taken up the phrase as a weapon, using it in a series of opinions over the past four years to accuse his colleagues of failing in their duty to keep pushing back against limitations on gun ownership and use. The opinions were all dissents from the court’s decisions not to hear particular gun-rights appeals.
In 2015, for example, he wrote that the United States Court of Appeals for the Seventh Circuit had been wrong to uphold an Illinois city’s ban on assault weapons, and that by refusing to hear the appeal, his colleagues had failed to “prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.”
Last year, objecting to the court’s decision not to hear a challenge to California’s 10-day waiting period for gun purchases, Justice Thomas mused that “I suspect that four members of this court would vote to review a 10-day waiting period for abortions.” He declared, “The right to keep and bear arms is apparently this court’s constitutional orphan.”
In another opinion, this time joined by Justice Neil Gorsuch, Justice Thomas said it was “indefensible” and “untenable” for the Court of Appeals for the Ninth Circuit to have upheld California’s ban on carrying concealed weapons. By turning down the appeal, he wrote, the justices were enabling “the treatment of the Second Amendment as a disfavored right.” And in a remarkable concluding paragraph to his eight-page opinion, he added:
“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a state denies its citizens that right, particularly when their very lives may depend on it.”
By calling attention to Justice Thomas’s Second Amendment crusade, I want to make four points.
First, he’s simply wrong. The court decided Heller to vindicate what the majority described as a “core” Second Amendment right — the right of an individual to keep a handgun at home for self-defense. That’s all. Whatever else the Second Amendment enables people to do with their guns was left open. As Justice Antonin Scalia observed in his majority opinion, “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
Maybe Justice Scalia included that and a few other disclaimers in order to stay within the comfort zone of a member of his narrowest of majorities, probably Justice Anthony M. Kennedy. Or maybe he was just kicking the can down the road. In any event, it’s certainly not the case that justices who decline to overturn a 10-day waiting period can be accurately labeled hypocrites who are content to hide in their marble palace while leaving the populace unprotected.
Nor is the Second Amendment absolutism that Justice Thomas is calling for reflected in the way the Supreme Court interprets most other constitutional guarantees. Judge Bruce Selya of the Court of Appeals for the First Circuit made this point in a majority opinion in November rejecting a challenge to a provision of the Massachusetts gun licensing statute. “Even though the Second Amendment right is fundamental,” Judge Selya, an appointee of President Ronald Reagan, wrote in his opinion for a unanimous panel, “the plaintiffs have offered us no valid reason to treat it more deferentially than other important constitutional rights.” That decision, Gould v. Morgan, will shortly be appealed to the Supreme Court.
My second point is to underscore the role Justice Thomas plays in creating this rhetorical tidal wave. He is a Federalist Society icon and a hero to many young conservative lawyers, including the 10 former Thomas law clerks whom President Trump has already appointed to federal judgeships. (A dozen other former Thomas clerks hold important nonjudicial positions in the administration.) They and their colleagues among the new Trump judges, many of whom clerked for other conservative justices, are the ones who are making the “second-class right” mantra a standard feature of any Second Amendment dissent — in other words, not only that a particular majority opinion is incorrect, but that it is part of a dangerous trend that the Supreme Court, by implication if not explicitly, needs to address right now.
For example, the full 15-member Court of Appeals for the Fifth Circuit recently refused to reconsider a decision by a three-judge panel to uphold the longstanding federal ban on interstate sales of handguns. Dissenting from that refusal, Judge James C. Ho, a former Thomas clerk who joined the Fifth Circuit last year, cited Justice Thomas’s opinions in observing, “Yet the Second Amendment continues to be treated as a ‘second-class’ right.”
His dissent included a subtle dig at Chief Justice John Roberts, who notably has not joined Justice Thomas’s Second Amendment choir. The government rationale for the ban on interstate handgun sales is that while federally licensed firearm dealers can be expected to know the laws of their own state, they may not be familiar with laws of other states and so may not know whether an out-of-state purchaser is legally entitled to own a gun.
That is not sufficient justification for the ban, Judge Ho wrote; if dealers could learn their own state’s laws, they could learn other states’ laws as well. “Put simply, the way to require compliance with state handgun laws is to require compliance with state handgun laws,” he wrote in a riff on the chief justice’s much-discussed line in a 2007 school integration case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Judge Ho’s Fifth Circuit colleague Don R. Willett, another new member of the court, observed in his own dissenting opinion in the same case, “The Second Amendment is neither second class, nor second rate, nor second tier.” An appeal in that case, Mance v. Whitaker, is now pending at the Supreme Court, and the justices will decide this month or next whether to accept it.
Another new judge, Stephanos Bibas, dissented last month from a decision by a panel of the Court of Appeals for the Third Circuit that upheld a New Jersey law limiting a firearm magazine to 10 rounds of ammunition. He said the state had failed to provide sufficient evidence that “specifically links large magazines to mass-shooting deaths.” Acknowledging that five other federal circuit courts have also upheld limits on magazine sizes, Judge Bibas observed that while judges were understandably concerned about gun violence, “they err in subjecting the Second Amendment to different, watered-down rules and demanding little if any proof.”
“The Second Amendment is an equal part of the Bill of Rights,” Judge Bibas wrote. “We may not water it down and balance it away based on our own sense of wise policy.” That case is likely to be appealed to the Supreme Court. The New Jersey affiliate of the National Rifle Association, which brought the case, is first seeking review by the full Third Circuit.
The 49-year-old Judge Bibas, a former law professor, won plaudits for his dissenting opinion. “It is easy to see why President Trump chose to appoint him,” said an article on the website ammoland.com that appeared under the headline: “Third Circuit: Second Amendment Is a Second Rate Right.” John O. McGinnis, a well-known conservative professor at Northwestern University Law School, writing on the Law and Liberty website, called Judge Bibas’s dissent “the judicial equivalent of a perfect game, a first-round knockout, or a checkmate within 10 moves.” He added, “It will not be the last opinion of the Trump appellate judges that will shake the judiciary from its dogmatic slumber.”
My third point is this: Professor McGinniss may well be right, at least when it comes to the Second Amendment. The substitution of Brett Kavanaugh for Justice Kennedy may do the trick. On his former court, the Court of Appeals for the District of Columbia Circuit, Justice Kavanaugh took an aggressive gun-rights position, dissenting in 2011 from a decision that upheld the district’s ban on certain assault rifles.
Calling the majority’s analytical approach to the case “especially inappropriate,” then-Judge Kavanaugh wrote: “A ban on a class of arms is not an ‘incidental’ regulation. It is equivalent to a ban on a category of speech.” As a matter of constitutional doctrine, I understand his argument: that a right deemed by the Supreme Court to be fundamental, whether under the First Amendment or the Second, is entitled to the highest level of judicial protection. Nonetheless, to analogize possession of assault rifles to the right to free speech is a provocative move.
The two conservative judges who made up the majority on the three-judge panel, Douglas Ginsburg and Karen LeCraft Henderson, were sufficiently provoked by Judge Kavanaugh’s 52-page dissent that they added to their own opinion an unusual six-page “appendix” for the specific purpose of contesting his arguments. “The dissent mischaracterizes the question before us,” Judge Ginsburg wrote for himself and Judge Henderson. “We simply do not read Heller as foreclosing every ban on every possible sub-class of handguns or, for that matter, a ban on a sub-class of rifles.”
Justice Thomas himself has cited Judge Kavanaugh’s dissenting opinion favorably. It would hardly be surprising for Justice Kavanaugh to return the favor and join the crusade.
And that brings me to my final point. The Supreme Court’s appetite for expanding the Second Amendment, if such an appetite develops, will be wildly out of sync with the mood of the country. As The Times reported last month, based on data compiled by a gun-control advocacy group, public support for gun-control measures is surging. State legislatures passed 69 gun-control measures in 2018, more than three times the number in the previous year. More than half the states enacted at least one, while 90 percent of bills the National Rifle Association backed at the state level were defeated.
Even the Trump administration has caught the trend, with its announcement last month of a ban on bump stocks, the cheap attachments that turn ordinary rifles into something close to machine guns and that the Las Vegas killer used to commit mass murder a year ago. The ban, to take effect in March, has already drawn at least two lawsuits. Perhaps these lawsuits will be a step too far even for the Second Amendment newbies on the federal bench. Or maybe not.
Does it matter if the public and the Supreme Court are running in opposite directions? It’s good news to anyone who would like to accelerate the collapse of public confidence in the one organ of government that at the moment seems to stand between us and disaster. For the rest of us, it’s one more thing to worry about as the new year begins.