I have never written on the Second Amendment, because it is just not a focus of the organization I lead. Conversely, Second Amendment organizations never talk about social issues, like same-sex “marriage.” But for those who love guns and also love the Tenth Amendment, the Obergefell same-sex “marriage” case may have just put you on the horns of a dilemma.
Will the Second Amendment Be Trumped or Limited?
The Obergefell case should concern gun rights advocates because of the evolutionary view of constitutional law it embraces. It created a new right not found in the text of the Constitution—same-sex “marriage” grounded in an implied constitutional right to sexual autonomy—and has set it on an inevitable collision course with an express constitutional right to the free exercise of religion. The current constitutional trajectory is toward religious liberty being limited by sexual liberty.
By analogy, Second Amendment supporters have to wonder what new right might liberals come up with, not in the text of the Constitution, and pit against the express constitutional right to bear arms? Or better yet, if the words “liberty” and “due process” in the Fourteenth Amendment can be morphed into the right to marry someone of the same sex, what meaning might the court infuse into the “right to keep and bear arms”?
For example, some, including President Obama, are now morphing the words “free exercise of religion” into the expression “freedom to worship.” And courts are increasingly saying that religion is what you do in the privacy of your home and something you give up when you enter into the stream of commerce as a member of the state.
So what is to keep the Court from someday saying that the “right to keep and bear arms” was only intended to protect one’s “liberty” in the context of home invasions and that people have a right not to have their life or liberty threatened by people who carry guns in public?
If that makes you laugh, I can direct you to some preachers who probably laughed eleven years ago when somebody suggested that the Massachusetts same-sex “marriage” case might lead to a restriction of the First Amendment’s free exercise clause.
With the stroke of the Supreme Court’s pen, it could be “bang!” the NRA is dead.
Will the Second Amendment Trump the Tenth?
As with same-sex “marriage,” the U.S. Supreme Court is driving the constitutional evolution by which the Second Amendment is beginning to trump the Tenth Amendment. In 2010, in McDonald v. City of Chicago, the Supreme Court held that the Second Amendment right applied to invalidate laws enacted the states (or their political subdivisions, cities). Until then, the limitation on restricting gun rights was confined to laws enacted by the federal government.
For many, this latter statement will seem shocking, but that was true with respect to all the rights enumerated in the Bill of Rights. None of those rights were protected from laws enacted by states until after adoption of the Fourteenth Amendment. For example, since 1870, Section 26 of Article One of the Tennessee Constitution has read:
Section 26. That the citizens of this state have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime. (emphasis supplied)
Arguably, in 2010 the Supreme Court trumped that provision of our state constitution, though I don’t recall legislators or citizens being as mad about that violation of state’s rights as they have been about marriage.1
Anyway, some Second Amendment supporters may now take the next step by trying to apply the following logic from Obergefell to the issue of gun carry permits: If an un-enumerated right to same-sex “marriage” can require one state to accept another state’s marriage license, cannot a restrictive gun rights state be required to accept another state’s carry permits, at least for limited periods of time such as trips and vacations?
I realize that other constitutional arguments can be made to reach this same result, but Obergefell certainly opens the door to the argument that a constitutional right trumps a state’s rights relative to the same subject. And if the NRA can walk through that door, and with the Supreme Court’s power to make up new rights, then expect others to try the same door until the Tenth Amendment has more holes in it than a target at the local shooting range.
1 To those who will misread that comment as anti-Second Amendment, let me be clear: to say that a state can regulate the wearing of firearms as a right under the original Tenth Amendment, which Tennessee’s voters chose to do in their constitution, is not the same as saying the state should actually exercise that power in any particular way. If conservatives were consistent and didn’t like that kind of provision in a state constitution, then they could have offered an amendment to change the state constitution rather than have the Supreme Court do the work for them. Ironically, years ago, when, as a state Senator having taken an oath to uphold the state constitution, I mentioned Article 26 in a gun rights survey, I got downgraded as a candidate.
— David Fowler, President of FACT
It is a foregone conclusion to many that the Supreme Court will find the man-woman definition of marriage unconstitutional. I confess, I’ve often felt that way. However, for the first time in a while, I thought of something that gave me a true sense of optimism.
Like many, I believe that Justice Anthony Kennedy may be the vote that decides a 5-4 outcome, one way or the other. What gave me hope was actually a pro-abortion opinion of which he was a part back in 1992, Planned Parenthood v. Casey.
One of the reasons the Court gave in Casey for not overruling the 19-year-old legal tradition established by Roe v. Wade was that doing so “would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.”
This, he said, was true because the “Court’s power lies … in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.”
And according to the Court, the kind of “perception” leading to the “acceptance” that it needs is based on its ability “to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures … .”
In other words, when the Court can’t ground its decision in precedents that have developed over time and that been accepted by the people, it begins to look like just another political branch of government, undermining what we need to believe as a nation—that the Court is the one entity that rises above politics to operate on the basis of the rule of law.
But it is here that a Justice like Kennedy, who cares about the Court’s legitimacy in the eyes of the general public, has a problem. The precedent of the Court for over 200 years has been based on an understanding that marriage is the relationship between a man and a woman.
And that length of time is important, too. Justice Kenney agreed in Casey that a decision overruling prior precedent “is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong.” And as he noted, “There is a limit to the amount of error that can plausibly be imputed to prior courts.”
In my opinion, asking Americans to believe that the Court has been in error for over 200 years in its understanding that marriage is the relationship between a man and a woman reaches the “limit” of the “amount of error” that is plausible.
Justice Kennedy apparently thought in Casey that after only 19 years it would be implausible for Americans to believe that abortion was no longer a constitutional right. If that’s true, then surely he will think it implausible for Americans to believe that it’s now somehow constitutionally impermissible to define marriage as a man and a woman after we’ve done so for the more than 200 years since our Constitution was ratified.
And implausibility is not something Justice Kennedy can afford to risk, because the legitimacy of the Court is already at an all-time low. An Associated Press opinion poll released last week showed that only 23 percent of Americans have a great deal of “confidence” in the Supreme Court.
Justice Kennedy, to paraphrase the language you signed onto in Casey, there is a limit to the level below which confidence in your Court can go before you, your colleagues, and your rulings will be no longer “plausible” and your edits viewed as illegitimate. And you are at your limit.
Ironically, the position Justice Kennedy took in Casey was not the one people expected from the Reagan appointee. Pro-lifers were as sure then that he was the vote they needed to reverse Roe v. Wade as same-sex “marriage” advocates are sure today that they will get his vote to turn marriage on its head. The pro-lifers were wrong about him. Perhaps this summer, history will repeat itself.
— David Fowler, President, Family Action Council of Tennessee