A Constitutional Case for Gun Control (super mega barf alert)

Supreme Court briefs are not known for their colorful writing. Readers are far more likely to encounter austere Latin legalisms than gripping personal narratives. Yet March for Our Lives chose to upend this norm in its amicus brief—a legal filing written by an interested outside party—in the upcoming Supreme Court case New York State Rifle & Pistol Association Inc. v. City of New York. Its brief “presents the voices and stories of young people from Parkland, Florida, to South Central Los Angeles who have been affected directly and indirectly by gun violence.”

The Supreme Court confirmed earlier this month that it would hear the case later this term, its first gun-rights case in nearly a decade. At issue is whether a New York City regulation that prevents licensed gun owners from transporting their firearms to second homes or gun ranges outside the city runs afoul of the Second Amendment.

For decades, gun-control advocates have left this narrative partially unanswered, offering depressing statistics but no compelling constitutional principle. They cannot afford to do so any longer. The March for Our Lives brief marks the beginning of a long-needed effort to offer a pro-gun-control constitutional narrative, one that calls attention to the constitutional rights and goods vindicated by gun regulation. These include a collective understanding of self-defense, as well as constitutional guarantees such as the right to public assembly and interests such as access to public education. The point is that the right to bear arms is not the only constitutional commitment implicated in the guns debate, and the Court ought to consider those other commitments as worth balancing with the right to bear arms, not as inherently subordinate to it.

The article hinges on the idea of a "Constitutional Narrative."

Even when upholding gun regulations, American courts rarely, if ever, reference these counterbalancing constitutional values. Instead, regulation is presented in sterile, technocratic terms—at best permissible, but never a constitutionally inspired imperative. How can courts do otherwise when they lack a narrative that locates these values at the heart of the constitutional debate over guns?

Constitutional narratives drawn from the contemporary world are, admittedly, a bit novel in today’s legal arena. This is, in part, the result of a decades-long effort by right-leaning gun advocates, lawyers, and scholars to frame arguments that rely on anything but the Constitution’s text and the original values recognized at the time of the founding as not constitutionally valid. Their interpretive methodologies—aptly named “textualism” and “originalism”—deny constitutional imprimatur to rights and interests that cannot be identified in the Constitution’s plain text or found in narratives premised on the writings of long-dead men... Constitutional narratives that account for the world they engender and the way they balance competing rights offer an answer to his admonition, infusing constitutional debates with practical lessons drawn from reality.

Such narratives are not merely politically expedient. They have long been an integral component of our constitutional culture, shaping popular understanding of our Constitution and, in turn, judicial decisions that reflect this understanding. By connecting the Constitution to those whose lives it governs and the values that motivate them, constitutional narratives are a distinctively democratic form of argument.

Gun-control advocates must reclaim the Constitution from the pro-gun lobby. The March for Our Lives brief is a step toward building a constitutional architecture that makes room for these sidelined constitutional values, one that properly integrates law with reality. It recognizes the pain of those whose lives have been upended by the elevation of founding-era mythology above present-day tragedy. And by putting the gun violence permeating America’s streets and schools directly in front of the Supreme Court as it confronts a high-profile case, the brief ensures that this narrative will be heard.

effort to offer a pro-gun-control constitutional narrative, one that calls attention to the constitutional rights and goods vindicated by gun regulation.

If these kiddos want to make Constitutionally-guaranteed rights subject to a cost/benefit analysis, then let's marshal the wisdom of Madison in Federalist #46, where he tackles the fear of a Standing Army. In 46, Madison basically says THE check against a Standing Army turning against the citizens is - wait for it! - the militia:

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

Thus, while I certainly am no fan of the innocent loss of life, Madison would likely want these Yalies to weigh the 'cost' of 'gun violence' against the benefit of 300 million firearms and trillions of rounds of ammo in the hands of the citizenry. My guess is Madison, likely also no fan of the needless loss of life, would agree with Joseph Story who said:

The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

When these guys wrote about the Militia Clause, it became obvious they skipped Con Law class & missed Heller, which says,

The 2nd Amendment has NOTHING to do with a militia.
Quote:

“The 2nd Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

And:

The “Militia” Clause of the 2nd Amendment doesn’t require membership in it to keep & bear arms.

“The Amendment’s prefatory clause announces a purpose, but
does not limit or expand the scope of the second part, the operative
clause. The operative clause’s text and history demonstrate that it
connotes an individual right to keep and bear arms.”

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