Buried about one-third of the way into a story appearing in several Alabama newspapers about why gun control is not a top political issue so far this year is a stunning acknowledgement that the gun prohibition lobby “lack confidence…that their policies will withstand judicial review.”
Translation: They’re worried the conservative Supreme Court majority will “strike down any gun laws” and leave any restrictions up to the states. This is especially true after the 2022 Bruen ruling clamped down on how the federal courts must decide Second Amendment cases, and they can no longer use the once-popular “means-end scrutiny” to perpetuate gun control laws. Henceforth, gun restrictions must fall within historical tradition of firearms regulation.
The Alabama report quotes Stanford Law School Prof. John Donohue, who complains, “The Supreme Court has taken such a strong position on the Second Amendment that much good legislation is now deemed unconstitutional, especially after the Bruen decision.”
He goes on to lament, “The stranglehold that the gun lobby has over the Republican Party makes it very difficult to get federal action on any measure that can get by the Supreme Court, so the states really are going to have to act if good gun safety measures are adopted.”
Donohue is widely known as a proponent of stricter gun control, as revealed in this Standford Law School article.
While anti-gunners are convinced that any restrictions on the right to keep and bear arms can be justified, it now appears they are far less certain their agenda will pass the constitutional smell test. The law struck down by the Supreme Court in Bruen—New York’s century-old, and unconstitutional, “good cause” requirement for obtaining a carry permit—may be a perfect example of a gun control law colliding with the Second Amendment of the Bill of Rights.
Gun control proponents loath the Second Amendment, which protects the right of the people to keep and bear arms, despite traditional claims they “support the Second Amendment.” Many have argued the amendment should be repealed, turning a protected right into a heavily-regulated government privilege.
Another law professor, Jeffrey Fagan of the Columbia Law School, was also quoted in the Alabama article. He suggested most people who support “basic restrictions” on gun owners disagree about their effectiveness.
“They don’t believe these solutions would stem the bloodshed, given the enormous volume of guns in circulation,” he explained. “They still believe a tiny minority of mentally ill or criminally violent people are responsible for the lost lives and bloodshed. Policy won’t help. Some may be nervous about, or fearful of government overreach.”
Therein lies a fundamental problem, one which many in the gun prohibition movement stubbornly refuse to acknowledge. The Second Amendment was not written into the Constitution so people could hunt ducks and deer. It was included to provide the people the means to protect the “security of a free state.”
Therefore, gun rights versus gun control may not be a top tier campaign issue at the moment, but that doesn’t mean it will not become one as the Nov. 5 election draws closer. It already provides something of a political acid test, with Democrats supporting gun restrictions far more than Republicans or Independents. Every opinion poll in recent years confirms as much.
Perhaps the observation of a third professor—Brannon Denning at Cumberland Law School, also quoted in the Alabama article—sums up the situation.
“The Second Amendment,.” Denning reportedly said, “represents an ideological rejection of the modern notion that the State should have a monopoly on the instruments of violence, and one that has been in our political DNA since the early Republic. Advocates for additional regulation, I think, bear the burden of showing why we should think additional regulations would bring down gun homicides.”
A textbook example proving this approach to be fundamentally flawed is Washington State. Since the passage of a billionaire-backed gun control initiative in 2014, and the adoption of a second measure in 2018, the number of homicides in Washington has more than doubled.
Republican gubernatorial candidate, and former sheriff, Dave Reichert made a point of that embarrassing data during his recent debate with Democrat State Attorney General Bob Ferguson, on whose watch the murder figure has climbed. Ferguson is an ardent gun control supporter. Reichert believes in locking up criminals rather than penalizing law-abiding gun owners for crimes they didn’t commit.
In the aftermath of two assassination attempts on former President Donald Trump, many in the gun control camp tried to capitalize on the attempts by arguing America’s gun laws are too weak and it is too easy for people to buy guns.
Pouring water on that contention is Amy Swearer, a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Writing at the Daily Signal, Swearer takes the “weak gun laws” argument apart, observing, “No reasonable person believes that a highly motivated criminal willing to commit premeditated murder with an illegally possessed rifle would have been dissuaded from doing so just because of public carry restrictions.”
Swearer has testified before Congress about gun control, so she knows a bit about the subject and the ineffectiveness of restrictive gun laws.
The gun prohibition lobby is squarely behind Vice President Kamala Harris in her run for the presidency, while the firearms community is strongly supporting Trump in his bid for another term. If Trump wins, the concern among anti-gunners is that he will appoint more constitutional judges and maybe even another Supreme Court justice, further solidifying court rulings on the Second Amendment, rather than weakening it, as would Harris-appointed judges.
There is much at stake in the upcoming election, in both Washington, D.C. and Washington state, and while public focus may be on the economy, abortion, energy and events in the Middle East, gun rights versus gun control is an issue very much hiding in the weeds, but only for the time being.
If there is a third assassination attempt against Trump—as many expect, according to a Rasmussen poll released Tuesday—the subject of guns will jump right back into the spotlight.
