We Found the Most Galling Argument of the Upcoming Supreme Court Term

Jurisprudence Briefing before the court is in full swing. Photo illustration by Slate. Photos by flysnow/Adobe Stock, serikbaib/Adobe Stock, and Paul J. Richards/AFP via Getty Images. Sign up for Executive Dysfunction, a weekly newsletter that highlights one under-the-radar story about how Trump is changing the law—or how the law is pushing back—and keeps you posted on the latest from Slate’s Jurisprudence team. Today, more than 100 million Americans live in places where weapons like the AR-15 are banned or heavily restricted. Generations of ordinary citizens fought for these assault-weapon prohibitions in the wake of tragic killings on a mass scale. The gun-rights groups opposing these laws often had more intensity, more money, and more influence in legislative chambers. From the first statewide ban in 1989, motivated by a California school shooting that left five children dead, to Virginia’s passage of a ban earlier this year, the legislative victories were hard-won. Yet the laws in the 11 states that have these bans are suddenly on shaky ground. This fall, the Supreme Court will entertain a Second Amendment challenge to the prohibition of assault weapons in Viramontes v. Cook County. Briefing before the court is in full swing. The challengers—a few individuals who want to own such weapons, along with some gun-rights advocacy organizations—recently filed their brief with the justices, arguing that the Constitution prohibits the people of these states from protecting themselves through law. The challenge directly concerns bans in Connecticut and Cook County, Illinois, but the court’s ruling will apply nationwide. The legal side of the constitutional debate over assault weapons can become consumed with technical details, like muzzle velocity, rate of fire, and the amount of kinetic energy a bullet fired from these weapons transfers to a human body. Or with arcane historical trivia, like the magazine capacity of the air rifle Lewis and Clark took on their westward expedition in the early 1800s. There’s no doubt that measuring mechanical functionality and discerning historical fidelity have become critical components of the conversation. Yet, if left abstract, they can obscure the real human people by whom and for whom these laws were enacted. This abstraction turned to subterfuge in the challengers’ briefing before the Supreme Court last month. The most galling part of their argument is the recurrent invocation of—and self-righteous cloaking of their argument in—the language of democracy. “The decision whether a type of arm is too dangerous for ordinary Americans to possess,” they wrote, “is one that the people are entitled to make, not one that courts are empowered to make for them.” They say this, to be clear, in a brief asking the judges of the Supreme Court to make the decision about what weapons can be possessed over the decision of voters. Because the lower courts upheld these laws, the challengers want the justices to tell the citizens of Connecticut, Chicago, and other jurisdictions like California and New York that they cannot make fundamental judgments about public peace and safety. Later in the brief, the challengers again assert that “whether the danger posed by a particular type of firearm outweighs its utility for lawful purposes is a decision for the American people to make, and judges are not authorized to second-guess that decision.” Yet their precise argument depends upon judges second-guessing—indeed, overruling—the decision that millions of those American people made about these weapons. It seems that judges are empowered to second-guess the decision of the American people if, and only if, gun-rights proponents don’t like it. After all, the American people voted for these laws in more than a third of the country. Connecticut citizens saw an AR-15-style weapon slaughter innocent 6-year-olds and acted to expand their law. The challengers, on the other hand, would have the Supreme Court foreclose that pathway of democratic choice. Contemporary Americans have grown accustomed to viewing the Supreme Court as the ultimate check on majority rule. And, in some areas, it might appropriately act that way. But—to the extent one credits the founders’ views—there’s good reason to doubt they thought nine lawyers in robes should have the unbounded authority to overrule a democratically elected legislature’s choice about how best to balance public good and individual liberty. It distorts the concept of democracy to cloak oneself in the rhetoric of protecting decisions by “the people” while urging an insulated cadre of educated attorneys to tell the parents who buried their children and then devoted their lives to the prevention of gun violence to shut up and sit down; your voice and your vote do not matter here, the challengers demand the court to decree. It would be a tragedy for the court to follow that path in the Viramontes case. It is an approach that is both historically uninformed and normatively unattractive. It squelches the most important right the founders fought to preserve to their posterity: the right to rule ourselves. Fortunately, federal judges have, by and large, rejected these calls to restrict the people’s right to make gun laws. No challenge to an assault-weapon ban prevailed among the federal courts of appeals until after the Supreme Court agreed to hear Viramontes. Conservative federal Judge J. Harvie Wilkinson expressed the matter best when he wrote for a majority of judges upholding Maryland’s assault-weapon ban: “We shudder to imagine the hubris with which a court would disable representative government at the very moment that lethal technologies are proceeding at an accelerated and indeed unprecedented pace.” As we await its decision, one can only hope there are enough Supreme Court Justices still willing to don the humility required to let the people remain their own rulers. Gun Control Guns Jurisprudence Supreme Court Judiciary