THE END RUN AROUND THE SECOND AMENDMENT
Obama’s “executive actions” merely continue the left’s anti-constitutionalism on guns.
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Since its ratification, the Constitution has been a hassle for those in power (and those who seek to expand their power). Which is precisely what it was meant to be — a series of constraints on power and hurdles to expanding that power, so that individual rights can be protected.
In 1992, Justice Sandra Day O'Connor summed it up this way in a case called New York v. United States: “the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”
Nowhere is this more true than in the Bill of Rights. Rather than laying out the specific powers of the federal government (as is the case in the rest of the Constitution), the Bill of Rights offered further, specified constraints on government power, ending in twin passages (the Ninth and Tenth Amendments) which can be summarized as saying that individual rights aren’t limited to what is listed in the Bill of Rights, and that all rights not surrendered as powers are retained by the states and the people.
This is certainly the case with the right to self-defense. Even absent the Second Amendment's much-debated prose, individuals would still have a right to defend themselves.
The focus, however, goes to the Second Amendment and its very clear constraints on government power, constraints that were underscored in the Heller and McDonalddecisions. These decisions were a setback for gun control advocates — who, in the years since these cases were decided, have been more than willing to let their true colors show: control isn’t really what they’re after. They want nothing short of a repeal of the Second Amendment, and a banning of guns similar to that in Great Britain. If you scratch a so-called “gun control advocate” chances are you’ll find someone who really wants to ban guns.
But what if they didn’t need to repeal the Second Amendment to realize their goals? What if they could merely sidestep the Second Amendment to achieve de factorepeal? Knowing the realities of the political landscape, the continued popularity of firearms as a means of self-defense in America, and the protection of those rights in recent Supreme Court precedent, activists (and their allies in the federal executive branch) know that they simply cannot tilt at the Second Amendment directly. After all, this is the very reason why President Obama announced his “executive actions” — Congress has no political will to accede to their ideological demands, so he “must” act unilaterally.
If you agree with Case Western Reserve Law Professor Jonathan Adler’s analysis of the President’s announcement (and I do), then this announcement was a real “nothing-burger,” for the most part. A mere restatement of laws already on the books, couched, in my opinion, in ideological demagoguery and tabloid theatrics. The exceptions to this, of course, are the moves to restrict the rights of those on Social Security disability and the effort to “chill” gun sales (which is the subject of another Volokh Conspiracy piece by Northwestern University Law Professor Eugene Kontorovich).
That is the goal. It isn’t to increase the permitting process for individuals seeking to get licenses or to purchase firearms — the President admitted as much in his CNN Townhall meeting. The goal is to make it harder to sell both guns and ammunition, and, in doing so, to restrict the rights to self-defense without having to take on the messy Second Amendment directly.
In fact, this has been the agenda of the left, generally, and the Obama administration specifically for years now!
Case in point, Operation Choke Point, the Obama administration’s effort to supposedly combat “fraud.” A joint effort by the Departments of Justice and Treasury and the Consumer Financial Protection Bureau, Operation Choke Point pressured banks and credit card payment processors to stop doing business with entities in industries the administration wanted to shut down. The goal was literally to “choke off” the cash flow for these businesses. Among the industries targeted? Those that sell firearms and ammunition. Have fewer gun dealers, the theory goes, then fewer guns and ammunition will be sold.
The same can be said for attacks on firearms manufacturers — specifically the effort to make manufacturers liable for how the guns they make are used. While this issue is essentially settled both legislatively and judicially, Democrats are making liability a centerpiece of the 2016 campaign, and their objective is clear: If you drive up the costs of manufacturing by increasing manufacturer liability, many gunmakers (especially the smaller ones) will shut down. Fewer gunmakers will mean fewer guns will be sold.
Then there are the assaults on ammunition — a strategic thrust that can be literally said to have its roots in comedy! Comedian Chris Rock, in his 1999 special Bigger and Blacker, said, famously, that “we don’t need gun control… we need bullet control,” and he went on to suggest that America ought to make bullets cost $5,000 apiece.
It was laughable then. But it isn’t so laughable now that his comedic proposal has taken root (to be fair, Rock was preceded in his call for such taxation by New York Sen. Daniel Patrick Moynihan in 1993). A wide range of proposals affecting the purchase of ammunition has been made (and implemented) across the nation — from licensing and background check requirements in New York (and elsewhere) to database comparisons in California. And now the call is to limit the amount of ammunition purchased. In New York, the call is to limit the purchase of “twice the capacity of a weapon” in any three-month period to prevent “stockpiling.”
Of course, the only reason “stockpiling” has become an issue is that there have been periods where the supply of ammunition has been sporadic, and while manufacturing of ammunition is back on the upswing, the left has been busy trying to curtail that as well. Environmental groups sued the Environmental Protection Agency to regulate lead in ammunition under the Toxic Substances Control Act, much the same way that California has mandated that non-lead ammunition be used in a host of activities. Just as a variety of fuel blend standards can lead to shortages and price spikes at various times of the year, forcing an industry to remove the primary metal in ammunition and come up with a substitute will both limit supply and increase price. (Thankfully, a federal appeals court ruled that the EPA had no authority under TSCA to regulate lead bullets.)
If the left succeeds on the ammunition front, however, bullets will become more scarce and more expensive and fewer will be sold.
And without bullets, the Second Amendment can be gutted without officially gutting the Second Amendment. After all, you’ll still have the right to buy the gun, which is what the Second Amendment protects.
Or does it? The Second Amendment (buttressed, as it is, by the Ninth) is about the right to keep and bear arms, not the right to keep and bear guns. To limit the supply of both guns and ammunition and think you could skirt the Second Amendment would be akin to imposing special taxes on ink and think you could skirt the First Amendment’s protections of freedom of the press.
Fortunately, there is precedent in this regard. In 1983, the Supreme Court found inMinneapolis Star Tribune Co. v. Commissioner that a Minnesota tax on “excessive” paper and ink use amounted to a violation of the Star Tribune’s First Amendment rights!
The Constitution protects us from our own best intentions. One cannot do an end run around it. We must stand firm against the attempt to circumvent the Second Amendment — a de facto ban on guns is no less a threat to individual rights than a real one would be!
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