Unable to Defend Semi-Auto Bans, Amici Take Aim at Heller Itself – Bearing Arms

The gun control lobby and their allies have submitted dozens of amicus briefs ostensibly in defense of “assault weapon” bans to the Supreme Court this week, though many of them don’t offer much of a defense at all. 

There are multiple briefs filed by survivors of mass shootings, for instance (my colleague Tom Knighton will have more on those later today). Another batch of briefs argue that allowing the sale and possession of semi-automatic long guns makes the job of police, pastors, and healthcare workers more difficult and dangerous. 

More than a few take aim at how the Court will decide whether AR-15s and other centerfire semi-automatic firearms are in common use. And then there are a handful of briefs that take issue with virtually every one of the Supreme Court’s Second Amendment decisions by declaring the Court got it wrong back in 2008, when it overturned D.C.’s handgun ban in Heller.

One of those briefs comes from an outfit called the American Enlightenment Project. I’ve never heard of this group before, but according to its website the organization is convinced that “the surest, quickest way to end this [gun violence] crisis is to overturn Heller.“

Now, I don’t think the Supreme Court created an individual right to keep and bear arms in Heller, but even if we accept that position for the sake of argument, there was plenty of “gun violence” before the Heller decision was handed down. In fact, the homicide rate and the violent crime rate in the United States are both lower than they were in 2008, and well below their peaks in the 1980s and 90s. 

Regardless of that fact, AEP founder Robert Ludwig (who also penned the group’s amicus brief) contends that the Second Amendment only “declares and guarantees the States’ right to maintain militias as security against federal encroachment.” 

There’s nothing particularly new about the collective-rights argument, though the brief goes to considerable lengths to dress it up as a historical revelation.

The biggest problem is that the Supreme Court has already rejected that interpretation, not just in Heller, but in McDonald, Bruen, and subsequent decisions reaffirming the individual right to keep and bear arms. The American Enlightenment Project wants the justices to believe that all of those decisions rest on a fundamental misunderstanding of the Constitution.

Its argument also requires treating “the people” in the Second Amendment as something fundamentally different from “the people” protected by other provisions of the Bill of Rights. The brief contends that the phrase refers to the states as political communities rather than individual citizens, but that interpretation effectively transforms an expressly enumerated right of the people into a guarantee of government authority.

Nobody disputes that the militia mattered to the Founders. But acknowledging the importance of the militia doesn’t require pretending that Americans possessed no individual right to arms outside of military service.

Another gun control group I’ve never heard of makes a similar argument in their own amicus brief. Americans Against Gun Violence claim in their brief that Heller was wrongly decided, and that it “effectively elevates the interests of the gun lobby over the intent of the Founders and the interests of the American people.” 

That would be incredibly strange, since there are clear references to an individual right to keep and bear arms long before there was a gun (or gun control) lobby. 

In 1789, for instance, Founding Father Tench Cox wrote that “the people are confirmed… in their right to keep and bear their private arms.” 

At the Massachusetts ratifying convention in 1788, Samuel Adams proposed language protecting peaceable citizens from federal interference with their ability to keep their own arms.

Those are just two examples, but there’s plenty more. 

The militia was undoubtedly an important part of the debates over the Constitution and the need (or not) for a Bill of Rights, but it doesn’t follow that the Founders recognized no individual right to possess firearms. The historical record suggests precisely the opposite. And service in a militia doesn’t negate an individual right, anymore than an individual right negates service in a militia. The ability to keep and bear private arms was undoubtedly important for service in a militia, but the militia wasn’t the reason that right existed then, or now. 

The Supreme Court isn’t going to use Viramontes to overturn its entire Second Amendment jurisprudence. So why bother making these arguments? My guess is that these groups are hoping that the dissenting minority will adopt them, and that they’ll eventually be used by majority if and when Democrats succeed in packing the Court. Heller is the law of the land, but Roe v. Wade was too, and the anti-gun Left would love to revisit and overturn Heller just as soon as they have the power to do so. 

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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