I went into the Supreme Court’s pending AR-15 cases expecting to find what you would expect: competing arguments about the Second Amendment, American history, firearm technology, crime statistics and public safety. There is plenty of that in the 87 amicus briefs filed in Viramontes and Grant. But after working through all of them, I came away thinking the briefs expose an even more fundamental disagreement.
They are arguing about the proper relationship between the citizen and the government. And California, perhaps more than any other state, has been living that argument for decades.
At bottom, the question is this: Who gets to decide?
When the Constitution protects an individual choice, how much authority remains for government to second-guess that choice by asserting that its exercise creates unacceptable social risks? The briefs offer dramatically different answers.
What Do We Mean by “The People”?
The briefs supporting the challengers generally begin with the citizen. Millions of Americans have chosen AR-15-style rifles for lawful purposes, including self-defense, hunting, competition, training and recreation. Under the Supreme Court’s Second Amendment precedents, those choices matter. The Constitution protects arms commonly possessed by law-abiding citizens for lawful purposes, and government does not get to define constitutional protection simply by announcing that it dislikes a particular firearm.
One amicus brief puts the point succinctly: “The choices of the people control.”
That reflects a particular understanding of constitutional government. The citizen possesses the right. Government did not create it. And government cannot simply take the choice back because legislators, judges or experts believe another policy would be preferable.
The Giffords Law Center offers a revealing response: “Americans’ popular will is legitimately expressed not just through the weapons they buy, but also through the legislators they elect.” That sentence gets remarkably close to the philosophical divide running through these cases. …
Which Brings Us to the Larger American Argument
This is where the gun debate begins to resemble the broader argument Americans are having about individualism, collectivism, limited government and socialism.
Those labels have to be used carefully. Not everyone who supports firearm restrictions is a socialist, and reducing the debate to political name-calling would obscure the more interesting issue. But there is a genuine philosophical disagreement underneath it.
One American tradition begins with the individual citizen. The citizen possesses rights. Government possesses delegated powers.
Its instinctive question is: Where did government get the authority to make this decision for me?
Another political instinct gives greater weight to collective decisions made through democratic institutions. Government is understood not merely as something acting upon “the people,” but also as a mechanism through which the people act collectively. Its question is different: Why shouldn’t citizens, acting through elected representatives, be allowed to make this decision for the community?
The American constitutional answer has never simply been one or the other. We have democratic government, but we also have a Constitution that deliberately places some subjects beyond democratic control.
The important question is which category a particular decision falls into. And that is exactly what the Second Amendment cases force us to confront. …
The point of an enumerated right is that the Legislature does not get the last word.
That is why Viramontes and Grant matter so much. The immediate question is whether government may ban commonly owned semiautomatic rifles such as the AR-15. But the 87 amicus briefs expose the much larger question underneath it.
What does it mean to possess a constitutional right? How much authority does the citizen retain against the government? When does democratic self-government become unconstitutional interference? And who decides when government claims that exercising a protected right has become too dangerous?
The briefs defending these laws repeatedly ask the Court to preserve room for government to make those judgments.
The briefs challenging them ask the Court to enforce a constitutional boundary that government cannot cross simply because officials believe they have good policy reasons for crossing it.
That is the deeper American argument. Both sides invoke “the people.”
But a constitutional right matters most when government believes the people have made the wrong choice.
— Chuck Michel in The Supreme Court’s AR-15 Cases Reveal What America Is Really Fighting About