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Kermit V. Lipez

Abstract

We live in the shadow of an epidemic of gun violence. We dread the next report of an inevitable mass shooting. We no longer feel secure in public places. We fear for the safety of our children and our grandchildren at their schools. We shake our heads in disbelief at the empty ritual of "thoughts and prayers" for victims and their families. As one commentator put it, we suffer from the "[u]nbearable [m]onotony of [g]rief." Why must we live like this? Why are there no solutions? In conversations posing these questions, there are often references to the Supreme Court's Second Amendment jurisprudence. However, there is no basis for suggesting that the Supreme Court is responsible in any way for the prevalence of gun violence in this country. There are many factors behind that awful reality. But the Court's Second Amendment jurisprudence, as it has evolved, might make it more difficult to find sensible solutions to the problem of gun violence. And therein lies a complicated story. I hope to shed light on that complexity in this article. The story involves an evolution in the Supreme Court's view of the meaning of the words of the Second Amendment—a shift from the long-held understanding that the Amendment states a collective right to keep and bear arms to its holding, in District of Columbia v. Heller, that the core right of the Second Amendment is an individual right to keep and bear arms for self-defense. On its own, however, that new understanding of the Second Amendment had a modest impact. Post-Heller, most challenges to gun-control laws still failed. As a result, gun rights advocates—and some Supreme Court Justices themselves—voiced their dissatisfaction with the state of the law, complaining that the individual right to keep and bear arms for self-defense was being treated as a second-class right, denied the protections afforded other rights in the Constitution. Those complaints ultimately bore fruit. In 2022, in New York State Rifle & Pistol Association v. Bruen, the Court established a new test for gun-control measures challenged under the Second Amendment—they must be "consistent with the Nation's historical tradition of firearm regulation." This new test is unprecedented and problematic. Now, legislative bodies trying to defend existing gun-control measures, and contemplating new ones, must focus on history in defending and drafting these measures rather than the current threats that require action. The Court's most recent Second Amendment decision in United States v. Rahimi, which upheld a federal gun-control measure, and is therefore a hopeful sign, has only modestly redressed the uncertainty and confusion caused by Bruen. We are at a critical point in the evolution of the Supreme Court's Second Amendment jurisprudence. It is important to understand how we got here as we contemplate the future legal landscape for evaluating the constitutionality of gun-control laws.

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