Law professor Darrell Miller forecasts a “radical change” in the law coming from the Court’s conservative justices.
Darrell Miller Last Updated: June 23, 2022 Published: May 25, 2022
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.
UPDATE: On June 23, the Supreme Court blocked the New York law.
The Supreme Court is poised to issue a ruling in a New York gun rights case that will likely expand the scope of protections the Second Amendment affords individual gun owners who want to carry a gun outside of their residences. The biggest question in New York State Rifle & Pistol Association v. Bruen may not be whether a majority of justices strike down the state’s century-old handgun licensing requirement but how far that majority goes in signaling that other licensing measures created by government officials are now constitutionally suspect.
Can officials prohibit handguns in courtrooms and schools? What about college campuses or hospitals? When the Court heard oral argument in November, the six-member conservative majority seemed far more interested in exploring the contours of an expanded Second Amendment than in whether it ought to be expanded. This approach to gun regulation is a sea change from the Court’s historical approach to the amendment, but it should come as no surprise to anyone who has followed the arc of the Court’s jurisprudence in this area over the past 15 years.
The current Supreme Court is far more conservative and far more friendly to gun rights than the one that first recognized a personal right to bear arms under the Second Amendment in District Columbia v. Heller in 2008. Or the Supreme Court that acknowledged two years later in McDonald v. Chicago that such protections apply to state laws and regulations as well. Gone since then is Justice Ruth Bader Ginsburg, a foe of expanded gun rights. In her place is Justice Amy Coney Barrett, whose view of the Second Amendment is viewed by many as even more expansive than that of the late Justice Antonin Scalia, the author of Heller.
For many years after the Heller and McDonald decisions, Justice Clarence Thomas, an extreme gun rights supporter, urged his colleagues on the Court over and over again to accept more Second Amendment challenges to existing gun laws. He wanted the Supreme Court to use the newly recognized “personal” right under the Second Amendment to sweep away regulations restricting the possession and use of firearms. And for many years, until the arrival of the three justices nominated by President Donald Trump, Thomas’s colleagues rejected those attempts.
That was then. This is now. Now we all are waiting for the Supreme Court’s ruling in Bruen, an opinion that some court watchers say won’t come until sometime in late June. This case is the challenge to New York’s 108-year-old concealed handgun law. The challengers claim they shouldn’t have to show a special need to get a license to carry a gun that way. A majority of justices seemed skeptical of New York’s rationale for the law when they asked about it during oral argument last fall. But Bruen is just the start of what some lawyers and advocates say will be a relentless effort by the Court to transform gun regulation around the United States.
The Bruen decision will come weeks after another mass shooting, another spasm of gun violence, this time in Buffalo, New York, where Gov. Kathy Hochul and state legislators are promising to expand the scope of gun regulations. Will the Buffalo massacre change anyone’s mind on the Court? Not likely. Nor will the massacre of 19 children and 2 teachers at Robb Elementary School in Uvalde, Texas. They were reportedly gunned down by an 18 year old who had just purchased his weapons in a state that has dramatically loosened gun laws in the past decade. It is harder for an 18 year old to get a driver’s license than a gun in Texas.
To get a sense of where we are now on the Second Amendment and where we are likely headed given the Court’s current makeup, I reached out to Darrell Miller, a professor at Duke Law School who is an expert on the Second Amendment and gun rights and regulations.
COHEN: Three days after the Capitol riot and insurrection, you gave a fascinating interview to Olivia Li at The Trace in which you talked about an insurrectionist theory of the Second Amendment. “There is always someone who thinks that tyranny is in the present” is the quote you once used to help describe the concept. It’s now been 15 months since January 6, 2021. What have you seen between now and then, among the hundreds of federal cases to arise involving the alleged rioters and insurrectionists, to support or undermine your old theory?
MILLER: If anything, the past 15 months have only reinforced my conviction that the normalization of threats of political violence in American society is undermining the foundation of American democracy. We’re learning through these prosecutions just how widespread and coordinated the attack on the Capitol actually was. We’re learning through the January 6 Committee how complicit a significant segment of the political, legal, and professional class was in supporting a multi-pronged attack on the peaceful transfer of power. Yet instead of seeing bipartisan condemnation of political violence, we’re witnessing ever more transparent appeals to it. I remain alarmed.
COHEN: What’s your view of the Protection of Lawful Commerce in Arms Act, the Bush-era federal law that offers a special shield to gun manufacturers to protect them from liability for the damage caused by gun violence? Would a legislative repeal of it violate the Second Amendment? And do you get a sense from recent litigation against gun manufacturers — I am thinking of the Sandy Hook case, for example — that this avenue might represent the best chance now to reduce gun violence by holding gunmakers accountable for some of it?
MILLER: I do not think a legislative repeal of PLCAA would violate the Second Amendment. I do think the Second Amendment presumes that there will be some kind of commercial market in weapons, but nothing about the Second Amendment says that market must be unregulated. Indeed, in District of Columbia v. Heller, the Court itself said “nothing in our opinion should be taken to cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms.” Right now, under PLCAA, firearms are among a handful of commercial products that are essentially immunized from tort rules that could force manufacturers and distributors to make them safer and less prone to misuse.
It’s possible that, if PLCAA were repealed, the Court would hold — as it has in the First Amendment context with defamation of public figures — that the Second Amendment sets the lower boundary for tort rules involving weapons. It’s possible, but that would give Second Amendment rights a kind of preeminence claimed by few other constitutional guarantees. The Sandy Hook case provides a very small crack to penetrate the PLCAA immunity shield, and perhaps that will be enough to make gun manufacturers change their sales practices. However, I’m not certain that it will provide the full set of incentives — already present with other kinds of commercial products: from batteries, to cars, to prescription medication — to make a potentially beneficial product less prone to misuse.
COHEN: Five years after he retired, former Supreme Court Chief Justice Warren Burger, a Nixon appointee, said the idea that there was a personal right to bear arms embedded in the Second Amendment was a fraud. The Second Amendment, he told an interviewer in 1991, “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.” That was 31 years ago. Since then, a conservative Supreme Court has ruled there is such an individual right to bear arms, a ruling that has spawned rollbacks of gun regulations across the country. To a lot of people, Burger’s comments are a sort of Rorschach test about the Second Amendment in general and gun regulation in particular. Where do you stand on it?
MILLER: This is not a simple question. To call the personal right interpretation of the Second Amendment a “fraud” presumes a certain kind of originalist constitutional methodology. It presumes that the Second Amendment means what the Founders intended or, alternatively, what the Founding generation understood the words to mean around 1791. Few, if any, of the Founders are talking about firearms for personal self-defense against criminals during the time the Second Amendment was ratified — the debate was focused on fear of a standing army and how to organize the militia. Recent research by linguists, using big data sets of 18th-century documents unavailable when the Court decided District of Columbia v. Heller, has pretty convincingly shown that the term “bear arms” was overwhelmingly used in a collective or military sense and almost never used in the modern sense of “carry weapons.”
So, by that metric, Burger is right. But assuming the Constitution means what the Founders intended or understood is a huge assumption. There’s a more flexible, evolving theory of the Constitution — typically endorsed by people on the left — that says the meaning of the Constitution gradually changes over time or is impacted by major public events or social movements. On that theory of constitutional interpretation, calling the personal right a “fraud” is a non-sequitur. This is the great irony of the Heller opinion — it’s a decision by an arch-originalist, celebrated by conservatives, that only makes sense if the Constitution is a living document.
COHEN: We all are waiting for the Supreme Court’s ruling in New York State Rifle & Pistol Association, Inc. v Bruen. Of course, I haven’t read every essay or analysis on the case or the oral argument that took place on it last fall, but I have yet to come across a Second Amendment scholar or gun policy expert who says the Court’s conservative majority will side with New York and against the interests of gun owners. What’s your sense of the scope of the decision we are most likely to see here? What’s your prediction?
MILLER: Other than feeling very confident that the existing New York State pistol licensing law will be struck down, I have very little sense of the scope of the decision we’re likely to see in the next month or two. The justices at oral argument seemed genuinely concerned that a broad ruling on public carry would embroil them in all kinds of minutiae about where guns can be prohibited — campuses, subway cars, Times Square on New Year’s Eve, etc. I cannot believe that they have much appetite for transforming every federal district court judge in the country into a gun zoning czar. That said, there’s a conservative supermajority on the Court that is clearly ready to flex its muscles on issues that conservatives have long cared about — from abortion restrictions, to free exercise, to gun rights — so I can’t rule out a broad and broadly disruptive ruling that would upend not only New York’s regulations but would call into question the constitutionality of nearly every gun regulation, in every state, at every level of government.
COHEN: You have written a great deal on the Second Amendment and how policymakers can and should approach the tension between gun rights and gun regulations. One article that caught my eye, posted last year, advocated for an “equilibrium adjustment” approach to Second Amendment law, a sort of sliding scale of reasonableness that would presumably protect some existing gun laws while striking down others. Sounds optimistic to me, given what we know of the Court’s ideological makeup. Are you looking for anything in Bruen that would help you evaluate whether the Court is receptive to this “equilibria” approach?
MILLER: The primary point I wanted to make in that article is that if the Court ends up leaning heavily or exclusively on text, history, and tradition to decide Second Amendment cases, the process of reasoning from analogy from those sources has to apply equally on both sides of the rights/regulation equation. The Court has firmly rejected arguments that only 18th-century weapons are protected by the Second Amendment. But that argument should apply to regulations too — more than just those regulations that existed in the 18th century are constitutional. So, if the Court holds that new kinds of weapons — like 9-millimeter pistols — are “similar” enough to historical weapons to count as an “arm” under the Second Amendment, the Court should say new kinds of regulations — like prohibiting guns on the subway — are “similar” enough to historical regulations to be constitutional.
COHEN: Constitutional experts who follow the courts always seem to have an eye on three or four cases that are beginning to wend their way through state court systems or the federal system. What three or four Second Amendment cases are you watching as they begin their journeys to the higher courts? Are we likely to see a challenge to these new open carry laws that so many states have adopted over the past few years? Are there other cases you see out there that could give this Court the opportunity to expand gun rights and limit gun regulation? What should we be watching for?
MILLER: There’s a host of unsettled questions that I’m keeping my eye on. The lower federal courts right now are wrestling with the issue of what counts as an “arm” for purposes of the Second Amendment: Does it include large capacity magazines? Does it include AR-15s and other rifles modeled on military weapons? In Michigan, the state supreme court is set to decide whether the University of Michigan and other state universities can keep firearms off their campuses or whether that violates federal or state constitutional law. Then there’s the flood of litigation that will follow the Bruen case. I guarantee that gun rights advocates have already got plaintiffs engaged and complaints drafted and that there will be multiple lawsuits filed as soon as the Court hands down Bruen.
But what I’m really focused on is the sleeper issue in Bruen that will determine just how radical a change we’re in for. Right now, the lower courts are using a two-step framework for deciding Second Amendment cases. The first step is a historical approach; the second step allows the government to justify its regulation through social science data or other kinds of empirical tools. But one issue in Bruen is whether that second step is permissible or whether all Second Amendment questions may be answered only by reference to what is permitted by “text, history, and tradition.”
If the Court adopts a “text, history, and tradition”-only approach to Second Amendment questions, then suddenly everything we thought we knew about gun regulation — that you can keep those convicted of domestic violence from possessing firearms; that you can keep loaded guns out of the cabins of commercial airliners — all that is up for grabs.
Disclosure: Miller was among a group of attorneys who filed a friend-of-the-court brief on behalf of neither party in the Bruen case, urging the Supreme Court not to apply a text, history, and tradition-only approach. He also filed a friend-of-the-court brief in the pending Michigan Supreme Court case.
This interview has been edited for length and clarity.
This discussion is one of several in a Brennan Center series on the Bill of Rights. The interview with Orin Kerr about the Fourth Amendment is here, the interview with David Carroll about the Sixth Amendment is here, and the interview with Carol Steiker on the Eighth Amendment is here.
