The Texas elementary school massacre that took place recently marked the beginning of the end. 213th mass shootingThe 2022 year, as documented by Gun Violence Archive. If mass shootings continue at their current pace, 2022 could be one of the most dangerous years in recorded history. Because of its legal doctrine regarding gun rights, which curtails legitimate state regulation and local regulation, the Supreme Court has been complicit with this gun violence crisis.
In 2008, the Board of Directors voted in District of Columbia v. HellerThe court ruled that the Second Amendment gives individuals the right to bear guns. We are law professors and have expertise in United States, comparative constitutional, and international law. We think outside the box. Heller was wrongly decided regarding federal regulation, we focus here on the court’s 2010 decision in McDonald v. City of Chicagoregarding state and local regulation
First, some background. The Second Amendment is one of the many constitutional amendments that were adopted in 1791 and are known as “The Bill of Rights”. In the 19th century, settled constitutional law established the Bill of Rights imposed legal restrictions on the federal government but not on state or local governments. In a series of cases, the Supreme Court held that most of the Bill of Rights Amendments impose legal constraints upon the states. Specifically, the court held that the 14th Amendment (adopted in 1868) made many of the rights protected by the Bill of Rights — such as the First Amendment free speech clause — binding on the states.
While HellerIt was based upon the Second Amendment. McDonaldThe 14th Amendment was the basis of it. Under the due process clause of the 14th Amendment, the Supreme Court consistently held — in that series of decisions between 1925 and 1971 — that only “fundamental” rights included in the Bill of Rights bind the states. The crucial question is: What rights are fundamental?
Before the court’s 2010 decision in McDonald, settled constitutional law established that the Second Amendment right to bear arms was not a “fundamental” right and therefore the Second Amendment did not impose constitutional constraints on state and local governments. McDonaldBy rejecting two centuries of consistent precedent, the Second Amendment imposes legal binding limits on state governments.
McDonaldThe Second Amendment was not a constraint on the power of local and state governments to enact sensible gun regulation and legislation. For example, a federal appellate court, relying McDonaldCalifornia’s law banning the sale semi-automatic rifles for anyone under 21 was recently invalidated. The law was constitutionally valid. McDonaldBecause, the Second Amendment didn’t impose any legally binding restrictions on state governments until 2010.
The court had previously affirmed the principle that a state law violates the 14th Amendment’s due process clause only if it infringes “immutable principles of justice which inhere in the very idea of free government.” This test under the court’s 1908 decision in Twining v. New JerseyImportant protection was provided for state autonomy through the limitation of federal judicial power under Section 14th Amendment.
Conservatives argue the TwiningTest is subjective. However, that test is much less subjective than the politicized 14th Amendment jurisprudence applied by the court’s current conservative majority. How should courts decide which rights are fundamental and what should they do? We believe courts can apply TwiningIn an objective manner, taking note of all existing data concerning free governments and right to bear arms, as also international human rights law.
Using the “liberal democracy” variable in the Varieties of Democracy database, 46 countries top the list as “free governments.” Data from the Comparative Constitutions Project databaseIt is clear that none of these 46 countries, except the United States, offer constitutional protection for the right-to-bear arms. Likewise, Freedom House classifies 82 countries as “free” countries; but none of those 82 countries, except the U.S., provide constitutional protection for the right to bear arms.
It is clear that the application of the Twining test, the right to bear arms — much less the right to wield automatic weapons while wearing body armor, like the shooters in Buffalo, New York, and Uvalde, Texas — is not an “immutable principle of justice” that “inheres in the very idea of free government.” Therefore, the 14th Amendment’s due process clause should not be construed to prevent state and local governments from regulating guns in accordance with their citizens’ preferences.
Moreover, unlike most other provisions in the Bill of Rights, the right to bear arms appears in neither the Universal Declaration of Human Rights — largely drafted by the U.S. — nor any of the nine core international human rights treaties. Its omission from all of those international instruments again provides clear evidence that the right to bear arms is not a “fundamental” right under the due process clause. It is not even mentioned elsewhere.
The Supreme Court McDonaldHowever, he rejected it Twining test. In McDonald, the court said that a right qualifies as “fundamental” only if it is “deeply rooted in this Nation’s history and tradition.” Even under that test, properly applied, the Second Amendment does not qualify as “fundamental” because our nation’s history and tradition before McDonaldIt is clear that the 10th Amendment guarantees the right of state governments, without any restrictions under the Second Amendment, to enact gun control legislation. The 10th Amendment provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The court’s current conservative majority pays lip service to both federalism principles and the right to life, while abusing its power of constitutional interpretation to advance a right-wing political agenda and to override democratic choices made by states and localities (such as Chicago) whose voters are concerned about significant gun violence. If the court is serious about federalism, and the right of life, it should overrule McDonaldReviving the Twining test as a limit on its own judicial power under the 14th Amendment’s due process clause.
If the U.S. is going to quash the crisis of mass shootings, state legislatures need the authority to experiment with different types of gun control measures — such as limits on carrying concealed weapons, which the Supreme Court may soon invalidate in New York State Rifle v. Bruen — to determine how best to save lives. There are many other proposals for gun regulation, including banning the sale and background checks of assault weapons, licensing, licensing, and so on. The Supreme Court should not violate the 10th Amendment. Instead, state and local governments should do the job that we elected them to: protect the safety, health, and welfare of their citizens.