Gun Control May Be Entirely Up to the Supreme Court

When I heard that there had been another school shooting at a Florida high school, I knew exactly what was going to happen next. First, everyone would say that their thoughts and prayers were with the victims. Then, several voices would call out for stricter gun control measures. Those on the other side would say that calls for gun control are a politicization of the issue and then there would be lengthy discussions about the shooter’s background and his mental health.

I was right. Everything that I wrote in the paragraph above is exactly what happened.

It seems that we are stuck in a repeating pattern that leads to nowhere, but how did we get here?

I could mention several possibilities, but for the purpose of this article, I will focus on only one, and that is the Supreme Court.

The Supreme Court Has Its Say

Those who think that stricter gun laws are the answer do not see the Supreme Court as an advocate. But in fact, the Court’s Heller decision in 2008 and McDonald decision in 2010 permit some of the gun laws that people are advocating for today. These decisions do not allow the federal and state governments to forbid American citizens to own guns — but do permit regulation.

Therefore, the real problem is the politics related to this issue. The Supreme Court’s interpretation of the Second Amendment is actually not the problem.

Some people believe that every gun control law is unconstitutional under the Second Amendment, but this is not exactly accurate. The late Justice Antonin Scalia wrote “…the right secured by the Second Amendment is not unlimited.” Also, “dangerous and unusual weapons” can be banned by the states. If the Supreme Court were to ban semiautomatic weapons, the ban would probably be constitutional.

The Second Amendment does not prevent the government from passing gun control laws. What does prevent it is culture and politics.

The Real Issue Is Culture

The black letter law of the Supreme Court’s decisions are not the whole truth. The Supreme Court’s decisions are symbolically important for proponents of gun rights, and this fact is overlooked when someone implores us not to “blame the Second Amendment.”

Moroever, there is the role of the National Rifle Association. The NRA wields enormous influence in the Republican Party. This fact made it impossible to pass even mild gun control laws on the federal level or the state level. The public would be in favor of some of the proposed gun laws, including those that would ban assault-style weapons, but they are not as well-organized as the gun control opponents.

Representation in both houses of Congress is also a factor. People in rural areas tend not to support gun control measures, and rural jurisdictions are overrepresented relative to population in both the House and the Senate. The problem is not just the Republicans who would be able to prevent the passage of gun control measures with control of only one house of Congress. The Democrats could have control of both houses, and it would still be relatively impossible to pass gun control laws. Many of the votes would be cast by representatives and senators who come from districts that would never support these laws. If these politicians want to remain in office, they would have to vote against most gun control initiatives.

Related: Sujit Choudhry and Geography’s Threat to Democracy

The Supreme Court

The shooting in Florida could lead to the passage of tough gun control laws. In the event that these laws are challenged, they will almost certainly come before the Superme Court, as happened before.

In 2008, the Supreme Court decided that the Second Amendment protects each individual American’s right to possess a firearm in the District of Columbia v. Heller case. The justices also stated that this right has limitations, and they put these issues into the hands of those on the lower courts. In most of the cases that have already been decided, the lower courts agreed with the Supreme Court’s decisions.

Two of the Supreme Court justices are in their 80s. It’s possible that one, or both of them, could retire during President Trump’s first term. If that were to happen, he would be able to nominate more conservative justices to join the court, which could dramatically restrict the scope for guns laws, ending the gun control debate for some time.

For more constitutional law analysis from Sujit Choudhry, visit him on Facebook, LinkedIn and Twitter or visit his website: sujitchoudhry.com.