Exactly who are “The People”?
We see that phrase twice in the Constitution, once in the Preamble and the second time, interestingly enough, in the Second Amendment.
While the answer to that question may seem fairly obvious, the devil is always in the details, is he not? And Old Scratch seems to be working overtime on this one.
After NYSRPA v Bruen was decided, I made the bold assertion that all of us involved in Second Amendment jurisprudence were now destined to become historians. This is a direct result of Justice Thomas’ opinion in which he held that once the plaintiff’s conduct in question implicates conduct protected by the Second Amendment, the burden now shifts to the State to show how the statute is consistent with our nation’s “history, text and traditions of firearms regulations”, specifically at the time of the ratification in 1791. (Please note, the opinion makes it quite clear the statute does not need to be a direct match to an eighteenth century statute… a clearly defined analogous comparison may be sufficient.) To put it in the words of Justice Thomas: “[This should not be interpreted] as a regulatory straightjacket, NOR should it be construed as a regulatory blank check” (emphasis added… and the State, as well as anti-gun judges, have shown disdain for this second clause, usually leaving it out completely from their analysis.)
What has happened… in more than one case… is not at all what I was expecting. It is also incredibly disheartening on a philosophical level that far transcends the Second Amendment. In fact, there could be serious Thirteenth Amendment implications here as well.
The State, or more precisely the several States, attempting to uphold what I would consider patently unconstitutional gun laws, have made the argument that the burden should never shift to them in the first place. The Second Amendment simply does not apply.
As I have mentioned before, Second Amendment cases can be divided into two broad categories: hardware or behavioral. Hardware cases are pretty straightforward: Is this particular “thing” protected by the Second Amendment (more on this analysis in a second)? Behavioral has more to do with the the person or people involved. Can a felon own a gun? What can they do with the gun? Can someone carry a gun?
Bruen was an example of behavioral. The plaintiffs wanted to be able to carry a gun outside of their homes in New York, and New York had made that impossible by creating subjective (and, frankly, insurmountable) hurdles to obtaining a CCW and precluding any possibility of open carry. While they prevailed in their case, Justice Thomas articulated the appropriate Constitutional “test” to determine if a gun control statute (both behavioral as well as hardware) ran afoul of the Constitution.
The first step is deciding if the Second Amendment has even been implicated. The plaintiffs have the burden of showing it has. For hardware cases, they must show the hardware in question is 1) an “arm”, and 2) that “arm” is in “common use”. If they fail to show the “arm” is in “common use”, then it is classified as “dangerous and unusual”. (The argument often proffered by anti-gunners is that if we were to take the Second Amendment at face value, then individuals should be able to own nuclear weapons! That is completely incorrect. Nuclear weapons are, by definition, not in common use… thus they are considered “dangerous and unusual” and not afforded Second Amendment protection.)
Assuming the plaintiffs have met their burden and showed the weapon is in common use, the burden now shifts to the State to prove its statute is consistent with our nation’s history / text / and regulatory traditions at the time of the ratification.
If the case is a behavioral one, then things get a bit more interesting. If the plaintiff (or the prosecutor in a criminal case… which is often the venue) asserts the statute they are challenging implicates the Second Amendment, they have to show the Second Amendment applies to them as individuals.
This is where the “The People” thing comes into play.
The State has proffered multiple arguments that “The People” is a fairly narrow band of individuals.
First, it argues anyone who exists before the age of majority falls outside the scope of “The People.” At first blush this might make some sense. A seven-year-old should not have the ability to walk into a store and purchase a handgun. Then again, we do have methodologies to control behavior that don’t necessarily implicate Constitutional rights.
A fourteen-year-old does have certain degrees of Fourth Amendment and First Amendment protections. While the State has powers to limit certain aspects of speech when children are at school, the courts have been extremely reluctant to extend that State ability outside of school. Moreover, if children are living in a home, they still enjoy Fourth Amendment protections. Law enforcement cannot simply enter a person’s home without a warrant under the argument they want to search the child’s room and then arrest the parents for anything they find that happens to be in “plain view”. This type of theory would gut all Constitutional protections… insomuch as parents with children would now be subjected to the abrogated standard.
They have also stated that anyone who has any degree of past criminal conduct falls outside “The People.” This is also massively problematic. Sure… dangerous felons who have shown a propensity for violence may be outside the scope of those we want armed… but what about the individual who pled guilty 30 years ago to postal fraud? How do they represent a clear and present danger to society. Or worse, what about those who have been the subject of a civil restraining order? The threshold for the granting of a restraining order is spectacularly low. How and why should anyone have their Constitutional rights abrogated because of a civil proceeding?
More interesting is where does this trail of “law-abiding” citizen stop, and devious criminal genius begin? If someone convicted of mail fraud cannot have a gun, why not expand the criminal realm to include moving violations in an automobile? After all… driving at a high rate of speed has a far greater potential to create mayhem than lying about shoe inserts and shipping them through the postal service.
This also raises the question, and it’s one I mentioned at the beginning… if someone falls outside “The People”, then what exactly are they? Without the protection of enumerated rights, a person essentially is completely exposed to government interference. At one level this can be imprisonment, but on a different level it could be servitude. When the State has stripped you of your rights, you essentially become the property of the State. They are the ones responsible for you, and your ability to engage in independent conduct can be immediately curtailed. You essentially become a slave, and we outlawed slavery with the Thirteenth Amendment.
Perhaps… just perhaps… this is what the State is ultimately looking for.