Will the Supreme Court put a stake through the heart of gun control?

The irony is rich.  Old Joe Biden, floundering in the polls and needing a distraction, seized on the recent mass shootings to launch a gun control push.  Many conservatives are panicked by his talk of an "assault weapons" ban, whatever that means, and outlawing all 9mm ammunition.

Yet, without any compromise on badly needed school safety provisions, it is hard to see even modest federal gun restrictions going forward.  In fact, the Republican proposal is starting to look like no more than what McConnell, and even Trump, was offering the Dems in 2019.  Meanwhile, the constitutional conservatives on the Supreme Court are going to hand down another important decision on self-defense and the Second Amendment. 

The looming SCOTUS decision everyone knows about is the expected overturning of Roe v. Wade in the Dobbs case.  But also coming this June is the Bruen case, which should strike down the granddaddy of all American gun control laws: New York's 1911 Sullivan Act.  Sullivan was a corrupt Tammany Hall politician, and there are many scholars who think Sullivan's motives in essentially disarming law-abiding citizens of their pistols was to make life easier for his many criminal compatriots.

The Sullivan Act is a discretionary permit law, allowing the police arbitrary power to decide to whom they issue a pistol permit.  In New York City, for example, it's often been easy to get one if you are wealthy or famous, like Robert De Niro.  Yet ordinary people who live and work in dangerous neighborhoods are routinely denied gun permits, like the plaintiffs in Bruen.

When this case is decided, there will of course be the usual gnashing of teeth by the gun-grabbers, who will shriek about how the Second Amendment is not a personal right, and it's just for members of a state militia.

This argument was annihilated several years ago by Prof. Volokh in his 1996 article "The Commonplace Second Amendment," where he shows that the Second Amendment enshrines a right of the people individually: "Early Kentucky, Massachusetts, North Carolina, Pennsylvania, and Vermont Bills of Rights speak of 'the right of the people to bear arms.'  Since these provisions secure rights against the state governments, they must recognize a right belonging to someone other than the state or entities whose membership is defined by the state — this likewise suggests that 'the right of the people to bear arms' refers to a right of individuals." 

The Kentucky state constitutional language, written just a year after the U.S. Bill of Rights, by men who were friends and colleagues of Madison and the other Virginia framers, is particularly on point: "[t]he rights of the citizens to bear arms in defense of themselves and the State shall not be questioned."

Furthermore, the "militia clauses" of the original U.S. Constitution give the Congress extensive powers over the organization and training of the state militias.  If the Second Amendment was somehow intended by such oblique phrases to then modify this power of Congress, it is all but impossible to see how.

The real meaning of a "well regulated" militia, as used by 18th-century Americans, means much more than just a well trained and equipped military force.  It is a political concept that assumes an armed populace as an integral part of society and good government.  Both American and English patriots were deep admirers of the Swiss model of militia.  Diplomat Abraham Stanyan even wrote in 1714 that the "Swiss have a ... well regulated Militia ... that may overturn a Government at Pleasure."

After Bruen, I don't expect the people of New York and other high-crime blue states to literally overturn their governments.  But they could work a quiet revolution of sorts.  Law-abiding citizens would finally be able to readily defend themselves from the predators who lurk about their streets.  Ordinary people in big cities could take charge of their own safety and that of their neighborhoods by carrying licensed firearms.  A real sense of civic pride and responsibility could form, where today there is none.

That seems like a much more effective way to protect society from its worst elements than BLM folks and their solution for violent crime: call 911 to summon a squad car full of social workers.

Frank Friday is an attorney in Louisville, Ky.

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