At the 2024 Federalist Society National Lawyers Convention, Professor Mark W. Smith delivered a compelling speech on the Second Amendment, emphasizing the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen and its profound impact on gun rights in America.
Understanding the “Unqualified Command” of the Second Amendment
Professor Smith began by highlighting the Supreme Court’s characterization of the Second Amendment as an “unqualified command.” This designation underscores that the right to keep and bear arms is fundamental and not subject to arbitrary restrictions. He stressed that any ambiguity in historical context should default to the clear text of the Second Amendment, ensuring that the government bears the burden of justifying any limitations on this right.
The Role of Historical Analogues in Gun Control Legislation
A significant portion of the speech focused on how courts should evaluate historical precedents when assessing modern gun control laws. Professor Smith outlined key criteria for determining suitable historical analogues:
- Actual Laws: Only enacted laws, not mere proposals or societal norms, should be considered.
- Relevant Time Period: The primary focus should be on laws from 1791, the year the Second Amendment was ratified, as these reflect the original understanding of the right.
- Constitutional Consistency: Historical laws rooted in unconstitutional practices, such as those based on racial discrimination, should be disregarded.
- Prevalence and Duration: Laws that were widespread and enduring carry more weight than isolated or short-lived statutes.
By adhering to these guidelines, courts can ensure that modern interpretations of the Second Amendment remain faithful to its original intent.
Applying the “Why” & “How” Analysis
Professor Smith introduced the “why” and “how” framework to assess the relevance of historical laws to contemporary issues:
- Why: The purpose behind the historical law.
- How: The method by which the law was implemented.
He illustrated this with the Supreme Court’s decision in District of Columbia v. Heller, where the Court found that historical bans on “dangerous and unusual” weapons did not justify modern handgun bans, as handguns are commonly used for lawful purposes today.
The Impact of Bruen & Rahimi on Second Amendment Jurisprudence
Discussing the Bruen decision, Professor Smith noted that the Court rejected New York’s restrictive “may issue” permitting system, finding no historical precedent for such limitations on public carry. He also addressed the Rahimi case, emphasizing that it represents a routine application of the principles established in Heller and Bruen, reinforcing the necessity for courts to adhere to historical context when evaluating gun control measures.
Guarding Against Overgeneralization
To prevent the erosion of Second Amendment rights through overly broad interpretations, Professor Smith proposed several safeguards:
- Consistency with the Second Amendment’s Text: Derived principles must not contradict the explicit guarantee of the right to keep and bear arms.
- Alignment with Supreme Court Precedent: Any historical principle must be in harmony with established Court rulings.
- Focus on Law-Abiding Citizens: The analysis should center on the rights of lawful individuals, not the actions of criminals.
- Preservation of the Amendment’s Purpose: Any derived principle should uphold the Second Amendment’s role in protecting against tyranny and ensuring self-defense.
By implementing these measures, courts can maintain a faithful interpretation of the Second Amendment, safeguarding it from dilution through generalized reasoning.
Let’s Get it Done!
Professor Smith’s address serves as a vital reminder of the importance of adhering to the original understanding of the Second Amendment. His insights provide a robust framework for evaluating modern gun control laws, ensuring that the fundamental right to keep and bear arms remains protected for future generations.
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