Susan Estrich: What would the founders have said?
Summary: Meantime, if we must err, how can we not err on the side of having fewer of these weapons in circulation, making them less available, than having more?
California's ban on assault weapons is back on the books, at least for now. After a federal district court decided that the ban on AK-47s was a "failed policy" that had not reduced violent crime, and was therefore unconstitutional, a unanimous panel stayed the lower court's order, thus leaving the ban in place — for the time being. Few doubt that the issue will end up being decided by the Supreme Court.
And I mean that literally.
How do nine men and women in 2021 go about deciding whether an amendment written when no one could even imagine the killing power of an assault weapon guarantees a citizen the right to own one?
Assuming that is the right question, which it probably isn't.
The idea that the meaning of the Constitution can somehow be divined by examining the intent of the founders meets its match these days fairly frequently in a world they could not have easily imagined.
And in this case, much to the chagrin of some purists on the right, the case is complicated by the fact that the conservative trope has long been, when in doubt, leave it to the states.
So, when in doubt about civil rights (as only they were), leave it to the states.
So, when in doubt about abortion (as most Americans actually aren't), leave it to the states.
So, when in doubt about gun regulation, leave it to the states?
Not so fast, you say.
Remember how well it worked when all those formally federalist thinkers on the Supreme Court in 2000 decided to abandon the principles that state courts should decide how ballots in the state are counted to discover a constitutional right for the Republican to win? That was Bush v. Gore, of course, in which the presidential election was decided by a 5-4 vote, and the legitimacy of the Supreme Court was widely considered the big loser.
That's what tends to happen when politics defines so precisely and perfectly the outcome of a decision.
There is almost something refreshing about Supreme Court decisions that divide in unexpected ways, with conservatives agreeing with Justice Stephen Breyer, for instance, or Justice Sonia Sotomayor writing for a diverse Court. In those moments, we can actually find hope that the rule of law is something a little bit more than simply a recount of who appointed whom.
The talk of expanding the size of the Court has largely dissipated, ably placed to one side by the Biden administration's embrace of the old standby, the commission (still too sensitive for Jan. 6 Republicans, it bears noting). The Court did not come through for Trump on even a single one of his challenges, a sign of the weaknesses of every one of the cases, and perhaps also the wisdom or wariness of the post-Bush v. Gore Court. Nor did the Court, as only Trump still hoped, strike down the Affordable Care Act that the Republicans continue to attack without any idea of how they might replace it.
So, we're back to the usual suspects: guns and gays and abortion, AK-47s that are as American as apple pie, along with the still-existential threat to girls sports posed by the participation of transgender girls (a threat yet to take material form).
I am not so naive as to believe that banning automatic weapons will keep them out of the hands of criminals determined to find them. But I have yet to see any evidence that legalizing them — which is making them even easier to come by, and cheaper — offers more protection than not, or that this debate can find its solution in the words of the Constitution.
Meantime, if we must err, how can we not err on the side of having fewer of these weapons in circulation, making them less available, than having more?
Susan Estrich can be reached at firstname.lastname@example.org.