The U.S. Court of Appeals for the 9th Circuit recently upheld California’s restrictions on certain politically unpopular semi-automatic firearms. Why? The court concluded that the 2nd Amendment does not protect any right of individual Americans to possess firearms because it was adopted only to preserve the right of the state governments to arm their militias. This directly contradicts the position taken by the Court of Appeals for the 5th Circuit, which has held that the Constitution does protect a right of private citizens to keep and bear arms, subject to limited exceptions designed to protect the public from lawless violence. The disagreement invites Supreme Court review.
The author in the 9th Circuit case was Stephen Reinhardt, a jurist given to writing lengthy opinions that often serve as a kind of judicial voice for mainstream legal academia. And which are frequently quite astounding.
A few years ago, for example, Judge Reinhardt wrote a classic opinion holding that legal proscriptions against assisted suicide violate the Constitution. In another case, he ruled that a trucking company was required to employ a driver who had failed the Department of Transportation’s basic vision test. And he once invoked the Constitution to invalidate a statute requiring parental notification or a court order before a minor obtained an abortion.
Judge Reinhardt is very apt to get reversed. In a quick search, I found eight cases in which the Supreme Court ruled on the merits after reviewing a decision in which he wrote the opinion. The court did not affirm any of these decisions, and it usually reversed unanimously (as it did in the three cases just described).
Judge Will Garwood, who authored the conflicting opinion in the 5th Circuit case, has a rather different record. I found only one case in which the Supreme Court has directly ruled on a case in which he wrote the opinion. The case was United States v. Lopez (1995), in which the court struck down the federal Gun-Free School Zones Act, holding for the first time in more than half a century that Congress had exceeded its constitutional authority to regulate interstate commerce. This was a shock to much of the legal establishment, which treats it as a radical departure from prior law.
It is seldom noticed that the Court affirmed Judge Garwood, who deserves more credit than he has gotten for reviving the forgotten principle that the Constitution’s limited delegation of specified powers to Congress must actually have some limits.
As between Reinhardt and Garwood, put your money on Garwood. Unfortunately, the Supreme Court could easily reject Reinhardt’s far-fetched interpretation of the 2nd Amendment without actually preserving any meaningful protection for the right to keep and bear arms.
The 2nd Amendment says: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." For more than a century after it was adopted, almost everybody who discussed the matter easily recognized that this language protects an individual right. Just like the "rights of the people" protected in the 1st and 4th Amendments.
Once gun control became popular with the political elites, however, the lawyers got busy and devised a theory under which the 2nd Amendment protects "the right of the states . . ." or "the right of the state militias . . . ." This theory swept unimpeded through the federal courts of appeals during the 20th Century, though it has no support in logic, history, or Supreme Court precedent. Eventually, a small band of legal practitioners began challenging the establishment consensus, and their scholarship laid the ground for a massive outpouring of studies by credentialed academics confirming what normal speakers of English knew all along. "The people" are you and me, not state governments.
Judge Garwood’s opinion in the 5th Circuit ably analyzed the meaning of the 2nd Amendment, and convincingly refuted the "states’ right" theory. Judge Reinhardt attempts to rehabilitate that theory, relying largely on a series of essays in a single academic symposium that was entirely devoted to criticizing the new scholarly consensus that favors the individual right interpretation. (He even cites the disgraced Michael Bellesiles, who resigned from Emory’s history department after his deceptive research was exposed by other scholars.)
Reinhardt’s effort flops. The prefatory phrase in the 2nd Amendment (technically an ablative absolute) does not alter the meaning of the main clause. Rather it simply states its purpose, which can be summarized briefly:
The militia has always been understood to comprise civilians who are available for military duty on short notice in emergencies. Article I of the original Constitution gave Congress almost plenary authority to regulate the militia, and this created the possibility that Congress would adopt "militia regulations" whose real purpose and effect was to disarm the citizenry. A "well regulated militia," however, stands in contrast both to one that is unregulated and to one that is inappropriately regulated. The 2nd Amendment forbids the government from adopting inappropriate civilian disarmament statutes under the pretense of regulating the militia. Thus, an individual right to keep and bear arms can contribute to the "security of a free State" by preventing this particularly dangerous kind of militia regulation.
Judge Reinhardt’s "states’ right" theory suffers from many fatal flaws. Consider just one. Reinhardt shares the view of former Chief Justice Burger that the "real purpose of the 2nd Amendment was to ensure that state armies-the militia-would be maintained for the defense of the state." That must mean that the 2nd Amendment drastically curtailed Congress’ Article I authority to regulate the militia, and must also have repealed another provision of Article I that prohibits any state from keeping troops without the consent of Congress. When the Bill of Rights was adopted, nobody suggested that the 2nd Amendment was changing anything in the original Constitution, and no court has ever held that it had such radical consequences.
The Reinhardt theory is so indefensible that the Supreme Court is unlikely to adopt it. But even if the high court acknowledges an individual right to keep and bear arms, it could adopt a standard of review that would render the right almost meaningless. Such a standard, often called "rational basis" review, is sometimes used in other contexts. Economic regulations, for example, are upheld against certain constitutional challenges unless a court cannot even imagine any possible rational relationship between the regulation and a legitimate public purpose. Judges will be able to imagine that virtually any gun control statute might somehow contribute to public safety, so they would all be upheld under this standard.
For the 2nd Amendment to have any real meaning, courts will have to treat the right to arms as a fundamental right that the government cannot infringe without a demonstrably strong justification. That’s how most other basic protections in the Bill of Rights are treated, but those rights are much more popular with the academics and journalists who shape the reputations of the justices. It will therefore take some courage for the Supreme Court to faithfully apply the original meaning of the 2nd Amendment. Do they have that much backbone?
