Conservatives act at cross purposes on gun safety

Two groups of conservatives made contradictory decisions last week on whether there should be a balance between the safety of the American public and the rights of a small, but very vocal, minority. A group of 15 Senate Republicans broke with their party and voted for a modest gun safety bill. At the same time, the GOP-appointed majority on the U.S. Supreme Court made sure that there will be more guns in public places. The Senate’s action will save lives; the court’s action will likely add to the tally of gun deaths.

The six Republican-appointed members of the Supreme Court struck down a century-old New York law requiring a showing of “proper cause” to obtain a license to carry a concealed handgun. Although the ruling was an immediate blow to public safety, the longer-term effect of the decision will pose an even greater safety threat.

The court departed from a consensus view developed by lower courts over the last decade that allowed gun rights to be limited by concerns over public safety. Instead, it focused the inquiry solely on whether a restriction is based on “history or tradition.” If a similar historical analogue for a gun limitation cannot be found, it may well be unconstitutional, without regard to the effect on public safety.

The flaw with the court’s new analytical framework, as was demonstrated in its decision, is that a long history can be cherry-picked to reach the desired result. A more even-handed view of history would likely have upheld the New York law. As revered conservative appeals court judge J. Michael Luttig put it, “When you look at the history and tradition, spanning six or seven centuries, you indisputably find that public carry of guns has been variously prohibited and regulated throughout the entire time.” An excellent decision of the Ninth Circuit Court of Appeals last year upheld a law similar to New York’s, based on a comprehensive view of that history.

Justice Breyer laid out a strong case for limiting gun rights to protect public safety in his dissenting opinion, but the conservative justices were not swayed. Public safety considerations will apparently carry no weight in gun rights cases.

The constitutional right to bear arms for any purpose other than protecting the freedom of our fledgling country was conjured up by Justice Scalia in the court’s Heller decision in 2008. The Second Amendment says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Scalia claimed the first half of the wording was just a preface, while the second half conveyed a substantive right to individuals.

His take was faulty, considering the drafters’ style and the circumstances of the times. Those who wrote the Constitution were thrifty with their words and not inclined to include surplus language. We must give substantive meaning to every part of the amendment, including the militia language. The drafters were wary of having a standing army and wanted to be able to rely on an adequately-armed militia for the defense of the Union. Thus, it was essential to specifically provide for the armament of these defense forces in the Constitution.

It is likely the framers took it for granted that individuals were entitled to keep and bear arms for hunting and personal defense but thought those were appropriate subjects for state laws since most states then had laws pertaining to gun rights and limitations.

It soon became apparent that a professional military was necessary to adequately defend the country, which obviated the express purpose of the Second Amendment. And issues related to firearms were considered to be the province of state and local governments. The Second Amendment was thus consigned to obscurity until Justice Scalia resurrected and repurposed it as a sacred individual right in Heller.

At the same time as the conservative justices were striking their blow against gun safety in the New York case, Congress delivered a modest victory for gun safety. The Senate passed bipartisan gun safety legislation with the support of the 15 Republican senators. It was a truly remarkable result, made possible by an outpouring of popular demand for measures to protect the public against gun violence.

Even in these divided times, Congress can still occasionally be swayed by public opinion. Unfortunately, the conservative Supreme Court justices are impervious to the will of the public, free to chart their own political course.

Among other things, the gun legislation encourages states to enact “red flag” laws to keep guns out of the hands of people found to pose safety risks, enhances background checks for young gun purchasers, provides hundreds of millions of dollars for school safety and mental health and cracks down on gun trafficking. It is a good start, but much more needs to be done to protect the public.

More than anything else, our governmental entities and public servants must understand that private rights ought to give way to the public good. We don’t believe a person’s First Amendment rights extend to falsely yelling “fire” in a crowded theater. Second Amendment rights must also yield when they infringe upon the paramount right of the people to be safe in public places.

Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.