There exists a common – and incorrect – mentality in modern American politics on the right to keep and bear arms. That is, the buck stops at the steps of the U.S. Supreme Court when it comes to our rights.
This tends to be most prevalent during presidential elections, because the candidates will probably appoint new justices if voted into office. It can only take one or two new faces to sway the court’s opinions one way or the other. Fear mongers on both sides will argue that if their preferred candidate isn’t elected, the opponent will transform the Supreme Court and lead to decisions they don’t want, such as with the right to keep and bear arms.
If we don’t prevent this from happening, the argument goes, then “there is nothing else we can do.”
This mentality conveys a horribly defeatist attitude; they’re not arguing the court has the authority to undermine the Second Amendment. They’re saying Americans are powerless to do anything about it.
They couldn’t be more wrong.
The argument that “it’s over” flies in the face of everything the Founders advised as well as the country’s recent political history. It’s easy to pander to people’s legitimate fears in the hopes of some temporary gain, but the harder road to travel offers solutions and empowers the individual to take action.
There are several solutions people can use in response to a potential Supreme Court opinion that infringes on our right to keep and bear arms.
One of them is noncompliance or anti-commandeering, as advocated by Madison in Federalist #46. Anti-commandeering has the states nullify in practice by withholding state resources and personnel from the feds when they try to enforce specific policies or legislation.
Madison wrote (bold emphasis added):
“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps a refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.”
If the Supreme Court ever “interpreted” the Second Amendment so that it was “over” in protecting our gun rights, then Americans could still rely on their state’s Bill of Rights acknowledging the right to keep and bear arms. Additionally, they could pressure their state legislature and lower jurisdictions to pass legislation either nullifying the court’s order or forbidding any state agents from enforcing it.
Even if all these measures failed, people would still have two final options. One, they could exercise the right to jury nullification by refusing to convict any person charged with violating the law based on the court’s ruling.
Of course, Madison’s advice of a “refusal to cooperate with officers of the Union” is not just for states, it’s for the People too. The general public could simply refuse to obey federal gun control measures, even if sanctioned by the federal courts.
If enough people did this, the court’s opinion would lose its meaning, not the Second Amendment. The feds do not have the resources to enforce their own laws. If Americans en masse engaged in such actions, the feds would have no choice but to eventually stand down.
This is how things have happened with marijuana. The plant is still illegal under federal law, yet 25 states and the District of Columbia have decriminalized it in some form.
If it can be done with weed, it can be done with guns.
No law can indefinitely survive popular resistance. It doesn’t matter how ugly things get in D.C. or at our state capitols. The 2nd Amendment will never be “over” as long as people are willing to exercise their rights even when the government doesn’t want them to.
In The American Crisis, Thomas Paine wrote “Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it.”
Our modern-day ephors in D.C. can say what they want. The fight will go on.