Still a Hollow Hope: State Political Power and the Second Amendment – Part I

  • Date:
  • September 13, 2023

This guest post does not necessarily represent the views of the Duke Center for Firearms Law.

As the author of Still a Hollow Hope: State Political Power and the Second Amendment, I have been given the privilege of blogging on this site.  For my first couple of posts, I will give a bit of my background and a summary of the book.  Let me just note how this site is an invaluable resource, and it’s an honor to be involved. 

My pertinent background is that I was a Coast Guard Gunners Mate and small arms instructor stationed at the Coast Guard Academy before becoming a commissioned officer.  During my 14 years of service on both Active Duty and in the Reserves, I was also a Boarding Officer, sometimes called a “water cop,” so I believe I bring a technical background to the issue of gun control and gun rights.  Using my GI Bill benefits, I went back to school full time to complete my PhD coursework in American government and public administration.  While working on my dissertation, I went to work full time in local government.  I received my PhD in 2019.  Still a Hollow Hope was published in late 2022, and I’ve been blogging on my Substack since and I work in government finance.

Still a Hollow Hope is a follow up to work done by University of Chicago law professor Gerald Rosenberg in his seminal book The Hollow Hope, which threw cold water on the claim that significant social change in the culture war can be obtained through litigation.  The book is standard fare in political science majors across America.  The phrase “hollow hope” refers to the sometimes-frustrating belief by activists across the political spectrum that court decisions, particularly ones from the Supreme Court, are the final arbiters of the political landscape on a particular topic.  While courts play a role in social movements, Rosenberg’s findings on topics such as abortion and school desegregation (and mine in Still a Hollow Hope as it pertains to the Second Amendment after Heller) show that it is nearly impossible to generate significant social change through litigation.  Courts follow the culture, and the Supreme Court is not Galahad waiving a sword of justice in the defense of rights.  By the time a Supreme Court decision is made on a culture war issue, the justices are cresting a wave of public opinion and support from the elected branches of government, and they must rely on the elected branches to implement their decisions.  The story of an extraordinarily powerful court is a function of the legal profession in general and particularly the media.  This view of the Supreme Court as a dynamic actor able to impose its decisions on the nation starts from the premise that courts are free from electoral accountability and that highly educated judges effectively have life tenure.  The view is bolstered by “rally the flag” storytelling which makes key judicial decisions out to be cultural watershed moments.  But even a famous case like Brown was the result of decades of patient and incremental work by a stream of mostly forgotten activist lawyers who will never have their lines immortalized by poignant acting from Sidney Poitier.  In the end, courts do not transcend the political context of the system in which they exist.   

However, the idea of a relatively weak judiciary is nothing new.  Alexander Hamilton in Federalist 78 wrote that “the judiciary, from the nature of its functions, will always be the least dangerous branch to the political rights of the Constitution.”  Indeed, even when the concept of judicial review was applied in Marbury v. Madison, the case was a hollow victory as presidential opposition from Jefferson meant that the Court was unable to implement any decision with concrete impact.  In various showdowns at key periods in American history between the Supreme Court and the elected branches of government under Jackson, Lincoln, a Republican Congress during Reconstruction, and FDR, the Supreme Court ceded to the other branches. 

Courts are constrained by the limited nature of constitutional rights in that only a certain number and type are enumerated.  They are also constrained by a lack of judicial independence because courts can only decide the cases that come before them and must be selective about what cases to hear as they do not have unlimited resources.  Most importantly, courts are constrained by the judiciary’s lack of powers of implementation.  As Hamilton wrote in Federalist 78, the Supreme Court has neither the “sword” of the executive branch or the “purse” of Congress.  This last constraint is the most obvious but also the most glossed over by the public at large, because, for the most part in American politics, the rule of law is somewhat respected and court orders obeyed.  But imagine if President Eisenhower had told Chief Justice Warren after Brown v. Board of Education that the Court had made its decision, but he wouldn’t enforce it, and that they were on their own?  You don’t have to stretch your imagination back to the time of Andrew Jackson ignoring the Court, because after Heller and McDonald were decided, President Obama advocated for laws and implemented policies that gun rights activists argued were contrary to the Court’s Second Amendment jurisprudence, most specifically that the Second Amendment as per Heller protected “arms in common use.” 

Just as after Brown ten years went by before there was hardly any appreciable levels of integration in Southern school systems, likewise after Heller ten years went by with little appreciable expansion of the right to keep and bear arms in political jurisdictions hostile to the decision and the federal government actively worked to restrict gun rights.  Stymied by Congress, President Obama issued no less than 23 executive orders on the topic of firearms.  Charitably, one can assume that the tears he once shed at a press conference where he lamented his inability to get gun control laws passed was not just for the cameras, but that he was genuinely moved by the children who lost their lives to mass shootings like Newtown.  Either way, President Obama was not a politician who was going to be at the forefront of ensuring that Justice Scalia’s version of the Second Amendment from Heller was the version of his administration. 

Nevertheless, in certain periods of history, the Supreme Court has appeared to be a remarkably powerful institution (for example, during the Lochner and Warren Court eras, and arguably today).  How and when does this occur?  The Supreme Court can appear to be powerful when it is legitimizing a ruling coalition’s policy preferences into case law (as it did in the Lochner era) or providing blame avoidance for elected officials of the ruling coalition who punt tough policy issues to the courts, or in overcoming gridlock due to the ability of minority coalitions to stymie majoritarian policy desires in the legislative process.  The Supreme Court took advantage of legislative gridlock in the Warren Court era, and it has also done so over past few years.  This situation is given the epithet “activist Court” by those opposed to the decisions. 

There are certain conditions that can occur to overcome the constraints that generally render the Supreme Court anemic to implement its own decisions.  There must be a legal precedent for the change, there must be support for the social reform from a substantial number of members of Congress and the President, and either popular support from the public or low opposition and/or apathy for a Court’s decision.  If those conditions are met, then the elected branches will use their purse and sword to implement decisions or allow the free market to do so for them. 

When it comes to the Heller decision, you had a supportive president in George W. Bush, and an amicus brief in support of an individual right to keep and bear arms written by Second Amendment litigator Stephen Halbrook that was signed by the Vice President, 55 members of the Senate, and 250 members of Congress, a majority in both chambers.  According to Gallup polling, 71% of the public supported the right of citizens to own handguns when Heller was decided, the issue at the heart of the case.  The Supreme Court was hardly brave in deciding Heller as it did, and in incorporating it against the states in McDonald.  After all, just a few years previous, Congress and President George W. Bush had shut down the tort litigation lawsuits aimed at bankrupting the gun industry by passing the Protection of Lawful Commerce in Arms Act in 2005, largely putting an end to an attempt at social reform and gun control through litigation. 

Riding the coattails of Obama in 2008, a Congress largely hostile to the Second Amendment had other ideas that didn’t involve expanding gun rights.  Despite the change in control of Congress to a majority of members that supported gun rights that happened over the course of President Obama’s two terms, a Supreme Court almost completely absent on the gun issue for a decade led to another example for our annals of how social reform movements relying primarily or solely on litigation are bound to fail.  Lower courts went on to minimize the knock-on effects of Heller by mostly upholding existing gun control laws, and numerous states passed additional gun control laws.  For example, Colorado and California banned large-capacity ammunition magazines, California enacted a requirement for background checks on ammunition purchases, and New York banned assault weapons.  Again, courts again mostly upheld these new laws against Second Amendment challenges.  After a turnover in membership due to President Trump’s three confirmed nominees, the Supreme Court is now more active on Second Amendment issues, and, due to gridlock in the political branches making counter-mobilization difficult, gun rights social reforms are having some effect.

However, in the midst of the ten-plus-year absence of the Supreme Court on the gun issue, there was an interesting divergence at the state level.  Some states, such as California and New York, in a manner that only can be described as backlash to Heller, further restricted gun rights in numerous ways.  Meanwhile other states, such as Texas, expanded gun rights and social reformers had significant success in expanding concealed carry.  Only one state, Illinois, saw any real expansion of the right to keep and bear arms from court decisions: the Seventh Circuit struck down Chicago’s handgun ban, bringing legal concealed carry to the last state in the Union without any form of it.

Significant powers are retained by states in our federalist system, and the demographics and culture of a state have a large influence on its politics, in particular its stances on gun issues.  Is anyone surprised that a state founded on the motto “come and take it” (referring to their weapons), as Texas was, will have a pro-gun culture, while California, taken as an afterthought of the Mexican American War, will lack a noticeable gun culture, especially in comparison?

My next post detail some of the results of the three case studies in Still a Hollow Hope: Illinois, California, and Texas.  I will aim to show that social reformers who seek to change policy though litigation have the same constraints at the state level as the federal level, and that the history and background of a state lay the groundwork for its policies on gun control and gun rights.