Believe it or not, I’ve always tried to be rational about gun control, even after the Sandy Hill Elementary School shootings and the rising homicide rate here in Chicago. Yes, it’s true, I’ve tried to outline the types of firearms regulation that remain viable following two recent Supreme Court cases striking down federal and municipal handgun bans (here, here and here); and I’ve raised the not unreasonable question whether the Court’s decision to strike down Chicago’s gun ban in 2010 contributed in some way to the dramatic increase in murders here, most of which have been committed with firearms.
Nonetheless, I’m not one who dogmatically supports any law or regulation that happens to fall under the general rubric of gun control. For one thing, I think the Supreme Court’s biggest mistake in its landmark gun control cases was that it missed the opportunity to strike a balance between the language of the Second Amendment (it does, after all, explicitly state that “the right of the people to keep and bear Arms, shall not be infringed”), and the needs of individual states and individual communities to protect their citizens from violent crime. The Court could have found, as it did in District of Columbia v. Heller, 554 U.S. 570 (2008), that the Second Amendment created an individual right to own certain types of firearms as against the federal government; but that that right did not apply to state and municipal governments. In fact, the Heller opinion hinted at that result in Footnote 23:
With respect to Cruikshank’s [United States v. Cruikshank, 92 U.S. 542 (1875)] continuing validity on incorporation [of the Second Amendment; i.e., that the Amendment was made applicable to the states via the Fourteenth Amendment’s due process clause], a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894) , reaffirmed that the Second Amendment applies only to the Federal Government.
Taking that hint, a very conservative panel of the U.S. Court of Appeals for the Seventh Circuit initially upheld Chicago’s handgun ban in National Rifle Association of America, Inc. v. City of Chicago, 567 F. 3d 856 (7th Cir. 2009), only to be reversed by the Supreme Court in McDonald v. City of Chicago, ___ U.S. ___, 103 S. Ct. 3020 (2010).
In any event, I tend to think the Supreme Court may have been correct in Heller, but wrong in McDonald. If the Court had ruled the way I see the matter, the theoretically overbearing federal government would be limited (not powerless, but limited) in its ability to regulate firearms, but state and local governments would be free to craft laws that they, in their judgment, believe are in the best interest of their citizens.
But as we know, that’s not what happened. Instead, the Court ruled that the Second Amendment right to keep and bear arms applies equally to the federal government and to state and municipal governments. In other words, the NRA and its fellow travelers won. They got the interpretation of the Second Amendment they argued for: An individual right to keep and carry certain types of firearms, including handguns, subject to certain reasonable limitations the court outlined in Heller.
So, now the federal and state governments are on equal footing. And, in the aftermath of yet another mass shooting (and the increasing murder rate in some cities, like Chicago), federal and state authorities are asking the questions they should be asking: What can they do, consistent with the limitations spelled out in Heller and McDonald, to protect people not from law-abiding firearms owners, but from criminals bent on maiming and killing innocent people.
Again, the question they’re asking is: What can they do within the parameters of Heller and McDonald. The cases the NRA brought and won, which gave us the interpretation of the Second Amendment the NRA wanted.
Of course, I’d expect gun rights advocates to keep a watchful eye on federal, state and local governments to make sure they’re cleaving to the Supreme Court’s interpretation of the Second Amendment and the kinds of reasonable regulations the Supreme Court expressly allowed in those cases. What I wouldn’t expect is the full-scale freakout we’re seeing from many of those same gun rights advocates.
What I wouldn’t expect to see, for example, is this sort of thing (via Think Progress):
Texas State Rep. Steve Toth (R-TX), with the apparent support of at least one of Texas’ most powerful politicians, will introduce unconstitutional legislation subjecting federal law enforcement officers to arrest and prosecution if they enforce new gun safety laws in the Lone Star State:
A Texas lawmaker says he plans to file the Firearms Protection Act, which would make any federal laws that may be passed by Congress or imposed by Presidential order which would ban or restrict ownership of semi-automatic firearms or limit the size of gun magazines illegal in the state, 1200 WOAI news reports.
“If a federal official comes into the state of Texas to enforce the federal executive order, that person is subject to criminal prosecution,” Toth told 1200 WOAI’s Joe Pags Tuesday.
Of course, as Think Progress notes, Toth’s proposed bill runs completely afoul of the Constitution’s Supremacy Clause, but that won’t deter him:
In Toth’s words, “we want to do everything we can, especially as pertains to the Supremacy Clause. The Supremacy Clause gives the federal government — it basically trumps state law — which is wrong. And we want to do everything we can to undermine that.”
Seriously. Not happy with winning two Supreme Court cases that define the scope of their precious constitutional right to keep and bear arms, folks like Rep. Toth want to eviscerate the Supremacy Clause – of the same Constitution – to prevent the federal government from doing what the Supreme Court said it could do. In the very cases Rep. Toth’s side won.
See, this is why proponents of gun control have a hard time taking the gun cadre seriously. When you have state representatives who would shred the Constitution in order to protect firearms from any sort of reasonable regulation whatsoever, it looks like you’re not really interested in vindicating constitutional principles. In fact, it makes you look a little deranged.