Ethan Kessler: Look to lawmakers, not the courts

Monday, February 4, 2019 - 6:13pm

Despite attempts to remain out of the public spotlight and dodge partisan judgment best reserved for elected officials, the U.S. Supreme Court has cultivated quite a prominent (and romantic) image in the American imagination. Perhaps it is because of the countless TV shows and classic films such as “My Cousin Vinny,” in which the law is a backdrop for drama and the judge’s gavel an instrument of climax. Or perhaps we owe it to emotive portrayals of the high court as a force for good, as “The People vs. Larry Flynt” evokes. For whatever reason, the allure of a body so apolitical and professional in its composition, yet so absolute in its authority, has become inescapable.

The latest Second Amendment case to land on the Supreme Court’s docket, New York State Rifle and Pistol Association v. City of New York, exemplifies this phenomenon. The New York State Rifle and Pistol Association represents the latest battle between New York City gun owners, represented by the plaintiffs, and the city’s stringent controls over where they may keep their constitutionally-protected handguns. At stake, however, may be much more than the travel considerations of armed New Yorkers. Many predict a broader expansion of gun rights by the Supreme Court, in part because the court has not often heard cases concerning the Second Amendment.

However, such speculation largely obscures more relevant gun issues that do not require a writ of certiorari to debate, namely the continuing plague of gun violence across the country. Supreme Court decisions, to be sure, impact people’s lives in big ways. Second Amendment decisions are no less impactful. But truly addressing gun violence can only come through policy and policy from legislatures. The NYSRPA case, by directing our attention to the Supreme Court and its judgment, counterproductively downplays these policies and their consequences.

Still, panic and excitement over the case abound. It would be one thing if the case was in any way predictable. Yet, while the Supreme Court did break ground in its last two Second Amendment decisions by expanding “the right to keep and bear arms” to the individual and their home, in District of Columbia v. Heller and McDonald v. Chicago, it also left alone “longstanding prohibitions” on the ownership, sales and carrying of firearms. The opposite case also remains. While the gun control measures challenged in the NYSRPA case are uniquely restrictive, even for New York’s standards, a less expansive ruling could still drastically bolster the gun lobby’s latest crusade to weaken municipal and state concealed-carry restrictions.

Those still inclined to prognosticate generally view Justice Brett Kavanaugh as the case’s deciding factor. Indeed, they are right to characterize the new addition to the Supreme Court as a staunch Second Amendment defender, more inclined than former Justice Anthony Kennedy to take aim at basic firearm sale and registration laws. Those same pundits would do well to consider, however, that the conservative majority of the Supreme Court that enhanced Second Amendment protections in 2008 and 2010 still needs Chief Justice John G. Roberts Jr. to realize any of Kavanaugh’s pro-gun aspirations. Roberts — who as chief justice acts not only as a judge but also as the high court’s “custodian” — may well avoid co-signing any controversial opinions on such an issue as fraught as the Second Amendment. Roberts’ cautious tendency could hold especially true at a time when the Supreme Court — steadily losing confidence among the American people — has already been roped into President Donald Trump’s nakedly partisan remarks and likely stands to be drawn into the contentious border wall issue as well.

Surely, it is anyone’s guess as to the implications of the NYSRPA case. This is all the more reason to redirect undue attention away from gun rights and toward gun policy. No liberties — even those protected as fundamental rights — are immune from the realities of the people to whom they are gifted, and guns are no exception. Rates of per capita firearm homicides, as well as those of per capita suicides, are on the rise. When bad things continue to happen, we as Americans should expect policy changes from our lawmakers. Guns should differ from other policy issues only in the degree of scrutiny to which their restrictions are subjected, not in the legality (or lack thereof) of restrictions wholesale.

Nor should guns be held up as some sort of permanent American fixture immune to Constitutional reform. If our goal as Americans is to reduce the incidence of these tragedies (which affect both Republican and Democratic regions of the country), then there are plenty of gun control measures that are proven to possibly work. If the Constitution continues to be interpreted as a veto to these measures, then the American people should be encouraged to consider whether that same constitution ought to be amended. To decry this process as somehow “unpatriotic” would neglect the Constitution’s deliberate adaptability (and one of its current amendments).

Of course, gun control measures short of repealing the Second Amendment still infringe to a significant degree upon the state of freedom in which gun owners choose, use and interact with their firearms. As with any policy, these are the costs of attaining a greater good, and will have to be incurred by someone, somewhere. Those “someones,” Americans to whom gun rights are not mere policy obstructions but deeply cherished parts of life, must therefore be included in these future debates.

Regardless of where these discussions may lead us policy-wise, we should be having them. For now, there remain many gun control policies within Constitutional reach of our legislatures, where we can engage one another instead of idly waiting for opinions to be handed down to us. Until the Supreme Court rules otherwise, we should continue to debate the efficacy of gun policies within the Constitutional confines last set by Heller and McDonald. Let us find recourse in the halls of Congress, not in the gavels of justices — even if the latter provides for better entertainment.

Ethan Kessler can be reached at ethankes@umich.edu.