Second Amendment and democratic control

There has been much critical anticipation of the new term of the Supreme Court, especially its current conservative bent. The recent case New York State Rifle & Pistol Association Inc. v. Bruen, Superintendent of New York State Police (June 23, 2022), tells us much about the basic divide on the Supreme Court today. It seems like highly conservative views on basic rights have led to lower democratic control.  My thesis is that state interest should control individual rights through the means-end scrutiny analysis.

In New York State Rifle and Pistol Association Inc., the Court held that a 100-year-old statute violated the Second Amendment when it required that a person give a reason in addition to ordinary self-defense for carrying a concealed gun. This reason was known as “proper cause.” The Court held that this requirement gave the government too much discretion; that once the right of self-defense vested, within traditional limits, there was not to be a second inquiry regarding the state interest, commonly known as a means-end scrutiny analysis.

The majority conservative opinion was written by Justice Clarence Thomas, joined by Chief Justice John Roberts, and justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Liberal Justice Stephen Breyer wrote a dissenting opinion, joined by justices Sonia Sotomayor and Elena Kagan. The majority opinion relied almost entirely on precedent and extensive history. The precedents were District of Columbia v. Heller and McDonald v. Chicago, which established that the Second Amendment provided for use of a firearm for self-defense in the home. The extensive history covered 700 years, with special reference to 1791, the year the Second Amendment was ratified, and 1868, the year the 14th Amendment was ratified. (The Bill of Rights must go through the Due Process Clause of the 14th Amendment to limit states).

Most importantly, the majority did not permit a second step. Thomas writes: “Despite the popularity of this two-step approach, it is one step too many. … But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, a government must prove that its firearm regulation is part of historical tradition that delimits the outer bounds of the right to keep and bear arms.” Thomas believed things could be brought up to date by analogous reasoning.

It seems logical to conclude that if a limitation is not analogous to a historical limitation, the state cannot further limit the right. It then becomes absolute regarding any further limitation. Normally, rights are not absolute, but can be limited by, say, the strict scrutiny test, i.e., if there is a compelling state interest, and there is no less restrictive way to achieve that interest, the right can be limited. In intermediate scrutiny, the right can be limited if there is a substantial relationship between the limitation (here a “proper cause”) and an important or compelling state interest. This is known as the means-end scrutiny test, what Thomas refers to as the second step. Intermediate scrutiny was in fact used by the Second Circuit to uphold the New York law in this case, which the Supreme Court then overturned.

My thesis is that the conservative majority over-relies on history as "dead-hand" control. There should be the democratic control by means-end scrutiny analysis. Societies were different in the 18th and 19th centuries in population size, urbanization, culture, diversity and criminalization. We need effective policy made by our democratic representatives to deal with current reality. As Breyer writes in dissent: “The question presented in this case concerns the extent to which the Second Amendment restricts different States (and the Federal Government) from working out solutions to these problems through democratic processes. … I fear the Court’s interpretation ignores these significant dangers and leaves States without the ability to address them.” He concludes: “…it is appropriate … to look beyond history and engage in what the Court calls means-end scrutiny. Courts must be permitted to consider the State’s interest in preventing gun violence, the effectiveness of the contested law in achieving that interest, the degree to which the law burdens the Second Amendment right, and, if appropriate, any less restrictive alternatives.”

We are a constitutional democracy; both words count. Am I a closet liberal?

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James Pfister: Second Amendment and democratic control