Book Mini-Symposium Part III: Guns, Interpretation, and Executive-Branch Constitutionalism

  • Date:
  • August 04, 2019

By: Kate Shaw

This chapter focuses on a relatively unnoticed group of actors in the ongoing story of guns and the Constitution: state and local government officials. These ground-level actors include police officers and sheriffs, mayors, even attorneys general and governors; a focus on these officials, and the sites at which they encounter, respond to, and help shape the meaning of the Second Amendment—from amicus briefs to claims of interpretive autonomy to non-enforcement of state or federal gun laws—can help shed light on how constitutional meaning is made.

I’ll highlight in this short post just two of the examples discussed in the chapter. First, state and local government officials played a perhaps surprising role in both D.C. v. Heller and McDonald v. City of Chicago. In Heller, over 30 state attorneys general filed an amicus brief on the side of the challengers, arguing that the lower court had correctly concluded that the Second Amendment protects an individual right to gun ownership, and that D.C.’s handgun ban was therefore unconstitutional. Their brief also argued—though this question was not presented in Heller—that the Second Amendment applied not just against the federal government and in federal enclaves like D.C., but against the states as well. State and local officials had an even larger footprint as amicus filers in McDonald v. City of Chicago, which squarely presented the question of the Second Amendment’s incorporation. In that case thirty-eight state attorneys general joined a brief in support of the challengers, with a full-throated argument for incorporation. Although the states’ brief reiterated a commitment to basic precepts of federalism, it contended that “the discretion of state and local governments to explore legislative and regulatory initiatives does not include the power to experiment with the fundamental liberties of citizens safeguarded by the Bill of Rights.”

As Justice Stevens noted in dissent, there was something exceedingly strange about these filings: the positions they advocated seemed to run almost directly contrary to the interests of the state filers. As Justice Stevens wrote, “It is puzzling that so many state lawmakers have asked us to limit their option to regulate a dangerous item.” These states, of course, were free under existing law to impose no restrictions on gun ownership or purchase, beyond those imposed by existing law.  But, as the Stevens dissent suggested, under normal circumstances, states typically wish to limit the degree of judicial interference with their operations. In these cases, as in others since, a commitment to a particular vision of the Second Amendment superseded other, largely pragmatic considerations about guns and the community, and about federalism and local self-determination.

Second, local law enforcement officials, in particular sheriffs, have been active participants in debates around the meaning of the Second Amendment for many years. (It was two sheriffs, Richard Mack and Jay Printz, who brought the challenge to the background-check provision in the Brady Bill that resulted in the 1997 case Printz v. United States.) In recent years, a number of sheriffs, some associated with the so-called “constitutional sheriffs” movement in which Mack remains a central player, have asserted a sort of interpretive primacy over the meaning of the Constitution, including pledging not to enforce gun regulations they believe are inconsistent with the Second Amendment—sometimes in the face of clear judicial authority to the contrary.

The chapter ends by noting that over the past few decades, the evolution of the constitutional doctrine that governs the legal regulation of guns has been closely tied to, and in many ways driven by, popular understandings of the Constitution. And, although groups on the other side of gun regulation debates—in particular victims of gun violence and their family members—have articulated an opposing vision of the Second Amendment, they have not always presented their arguments in self-consciously constitutional terms. Perhaps recasting their claims in terms that are more explicitly constitutional—regarding both the limits of Heller and affirmative constitutional interests in a degree of government protection from violence—would constructively impact the next phase of debates about the meaning of the Constitution.

[Ed. Note: This post is part of a mini-symposium from the contributors to the new book Guns in Law.]