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

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

In my last post, summarizing the findings of Still a Hollow Hope, I detailed how, due to constraints including the limited nature of constitutional rights, a lack of judicial independence, and the judiciary’s lack of power to implement its decisions, historically speaking significant social change hasn’t been achieved through litigation.  This includes the gun-rights movement’s efforts.  Only when a court has the elected branches to implement its decisions, and either low opposition or public support, can social reform movements achieve social change through litigation.  In short, courts don’t lead the culture, they follow it.  They are a sidecar on the cultural motorcycle.

Many a wary-eyed observer of realpolitik has noticed states respond differently to controversial Supreme Court decisions.  For example, Rosenberg’s Hollow Hope showed racial integration happened sooner in the border states than the deep South after the Brown decision. The creeping tide of abortion restrictions occurred in states like Texas prior to Dobbs; meanwhile, in a post-Roe world, the state of Illinois has become a Midwest abortion haven.  

Still a Hollow Hope examines this phenomenon as it applies to the gun rights litigation campaign.  Prior to the Heller decision, states had different levels of gun control, so one could hardly expect a uniform reaction, and this reaction depended on the state’s political culture.  Given that “culture” is such an ephemeral term that it resists even the abuse given it by post-modernism, Still a Hollow Hope used the typography from the pre-eminent examination of American culture by political scientist Daniel Elazar. Elazar categorizes states as moralistic, individualistic, or traditionalistic.  Moralistic culture developed among the Puritans in northern New England in states such as Maine and Massachusetts, while individualistic culture originated in the mid-Atlantic colonies in states such as Pennsylvania, while traditionalistic culture arose in southern colonies that were tied to the economics of slavery.  Moralistic culture believes that collective action through politics is for the betterment of the greater good.  Individualistic political culture sees politics as a marketplace of competing interests.  By contrast, traditionalistic culture designs policies to preserve the status quo and for the benefit of elites.  A qualitative and quantitative analysis that I conduct in Still a Hollow Hope found that, as a state goes from moralistic, to individualistic, to traditionalistic, its support for gun rights over gun control grows.  The pre-existing state culture acts as an intermediary variable between a Supreme Court decision and implementation of that decision by elected officials. 

Furthermore, even apart from culture type, in general the more a state supported the right to keep and bear arms prior to the Heller decision, the more that state expanded gun rights after the decision.  Likewise, elected officials in states with the highest levels of gun control restrictions prior to Heller responded to the decision by increasing, rather than decreasing, the level of gun control.  The most archetypical example of this is New York’s SAFE Act, passed into law in 2013, which imposed the strongest assault weapons ban in the country and even attempted to limit magazine size to seven rounds.  What followed was courts, using mostly intermediate scrutiny, generally upholding these new gun control laws. The result was that, in many states, there were more restrictions on the right to keep and bear arms, despite the efforts of the gun rights social reformers.  My state level examination concludes with three case studies of California, Illinois, and Texas to show how, and why, this happened.  

Let’s summarize the case study on Texas.  It was a province of Spain, and later Mexico, largely unsettled due to the hostile natives (particularly the Apache and the Comanche).  Anglo settlers from the United States were invited in to act as a buffer between the hostile natives, who would conduct regular raids, and Mexican settlements further south.  The role of arms and a militia were large, given the prevalence of violence, such that even slaves were allowed to be armed if they were in the presence of their masters (for more on this point, see Randolph Campbell’s 2004 book Gone to Texas: A History of the Lone Star State).  The Anglo settlers eventually demographically overwhelmed the Mexican citizens.  When a repressive Mexican government, at least in Anglo-American terms, ratcheted up restrictions on free speech, the final straw that set off the Texas Revolution was Mexican authorities moving to seize the colonists’ arms. The motto of the revolutionaries was “come and take it,” a reference to the Greeks’ defiance at Thermopylae.  It doesn’t take a historian to see the parallels with the American Revolution, which had similar incidents. 

As an important aside, slavery wasn’t a cause of the Texas Revolution.  At the time, the Mexican constitution allowed indentured servitude with terms of 99 years, and servants could be bought and sold.  Because it wasn’t until after Reconstruction that the Native American tribes were finally defeated, the frontier, the militia, and guns as symbols of freedom are embedded in Texas culture.  Racial tensions were the reason why Texas, despite its long history of keeping and bearing arms for defensive and cultural reason, lagged behind when the concealed carry movement began in the 1980s.  Once full racial integration occurred in the twentieth century, there was no longer a need for concealed carry laws that on their face were intended to be racially neutral, but which had the intended effect of disarming blacks and Indians once Democratic majorities regained power in the state in the 1890s.  Texas now stands at the vanguard of pro-gun states.

Illinois has been a state of cultural conflict since its start.  In pre-industrial times, human settlement patterns flowed like water, following the path of least resistance.  The southern half of the state was settled by traditional southern culture moving north along river valleys, the center of the state was settled by individualists coming across the Cumberland Gap, and latecomers to the state were northern moralists coming via the Great Lakes.  Illinois was originally a slave state, but moralists in the northern portion of the state ended the practice–though the state then prevented the migration of free Blacks into the territory as a compromise position.  Demographically, as the state grew, the bulk of the state’s population came to live in the Chicago metropolitan area, particularly after the Great Migration of southern blacks to work in northern factories in the mid-20th Century.  The divide in Illinois between “downstate” and Chicagoland, therefore, is more than an urban/rural divide, it is a deeply cultural line dating to the first settlements in the state coming from disparate groups of people (compounded by various waves of immigration).  Illinois is perhaps the only state where significant social change leading to an expansion of the right to keep and bear arms occurred through court decisions.  While one might be tempted to ascribe this solely to the power exercised by the Supreme Court in McDonald (which struck down Chicago’s handgun ban), the fact is that about two-thirds of the state is from a pro-gun culture that crosses party lines to expand that right legislatively.  Downstate Democrats helped Republicans override their own governor’s veto in the state legislature, which resulted in a somewhat permissive “shall issue” concealed carry permitting system as a response to the Seventh Circuit’s decision invalidating the state’s ban on public carry.  Court decisions can be used by elected politicians or reformers like a lever, if they don’t have the votes to get their policy preferences enacted through legislation.  If anywhere, the social reformers seeking to expand the right to keep and bear arms after Heller had the most success in Illinois in creating real on the ground change, but only because culturally pro-gun Democrats from the downstate traditionalistic culture used the thin wedge given to them by a court decision to create change with their own political power.

Prior to the Heller decision, California had some of the most onerous gun control restrictions, and after Heller (and Bruen), it has continued to go the opposite direction of the Supreme Court.  The law on the ground has changed in the opposite policy direction of the Second Amendment legal activists, restricting the keeping and bearing of arms, to such an extent that one can say reasonably say that that it rivals Governor Wallace’s intransigence on segregation.  This is not to make a normative statement, but this intransigence reflects democratically elected lawmakers’ policies radical opposition to the Court’s decision-making.  Culturally neutral on the issue of gun control until the mid-20th Century, there was no strict regime of gun control in California from its founding until the demographic transformation of the state by Asian and Hispanic immigrants into one party rule.  For much of its pre-statehood history, California was mostly a rural region with only minimal conflict with very few hostile natives.  Militia played little part in the region’s history, and it was only the discovery of gold in 1848 and the massive influx of individualistic fortune seekers that prompted its addition to the Union, throwing into disarray the Missouri Compromise and helping to trigger the Civil War. After the 1965 Immigration Act and the demographic turnover of the ensuing decades, California went from a swing-state with moderate levels of gun control to the state that has one of the highest levels of gun control in the nation.  And while there are pro-gun Democrats (similar to downstate Illinois Democrats), the immigrants that make up the Democratic Party majority in California are not the product of southern traditionalistic culture, and therefore do not cross party lines on the issue of gun rights. 

At this point, a skeptical reader will recall that the California GOP under then-Governor Ronald Reagan passed the Mulford Act in 1967, restricting open carry.  First, the law passed before the GOP became the party of gun rights at the national level.  There were, at the time, as many conservative southern “blue dog” Democrats as northeastern liberal “Rockefeller” Republicans.  Second, in the civil rights hagiography, the Mulford Act was passed in response to the militant agitation of the Black Panthers; but, in truth, the bill, which was proposed on April 5, sat around for months after the Black Panthers’ armed march on May 2 on the California state capital before it was hurried into law the day the 1967 Detroit Riots ended on July 28.[1]  This riot resulted in tremendous property damage and forty-three people killed.  In short, the Mulford Act was spurred by urban crime rather than the Black Panthers.  

The California experience after major Supreme Court gun cases should show even the most skeptical proponent of judicial supremacy that perhaps Alexander Hamilton’s assertions in Federalist 78 about the weakness of courts were correct.  There has been no appreciable on the ground change in the right to keep and bear arms in California because of the social reformers’ litigation strategy.  At best, litigation has been a rear-guard action that keeps the most onerous restrictions, which are often enough passed by majoritarian ballot initiative, from taking effect.     

In conclusion, states in our federalist system still hold substantial powers.  As the United States has become more balkanized along cultural and partisan lines, the phenomenon of states taking their own initiative with a plethora of policy issues including gun control, environmental regulation, and abortion will continue.  This policy divergence among states means often disregarding the courts as much as states are willing to, while still maintaining a passing support for the rule of law.

[1] In my opinion the bill was, more likely than not, conceived by assemblyman Don Mulford after the Black Panthers (formed in October 1966) provided armed security to Malcolm X’s widow in February 1967 when she visited San Francisco, including entering the airport and escorting Betty Shabazz to an interview location.  I believe the bill never would have become law if not for the Detroit Riots, and it passed narrowly.

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

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.