David Sloss (@DavidSloss6) is the John A. and Elizabeth H. Sutro Professor of Law at the Santa Clara University School of Law and a faculty scholar with the Markkula Center for Applied Ethics. Views are his own.
In the United States, state governments have both a constitutional and an ethical duty to protect the health and safety of their citizens. The U.S. Supreme Court decision in New York State Rifle & Pistol Ass’n v. Bruen, decided on June 23, interferes with the states’ ability to carry out that duty by purporting to create new constitutional limits on the power of state governments to enforce sensible gun control regulations.
Bruen invalidated a New York law requiring individuals to demonstrate “proper cause” if they want to obtain a license to carry a concealed handgun in public. Although Bruen technically applies only to New York, it also appears to invalidate similar laws in California, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, and Rhode Island. This essay contends that state legislatures and state attorney generals should defy the Court’s decision in Bruen because their duty to protect the lives of their citizens takes precedence over their ostensible duty to follow misguided constitutional interpretations adopted by the Supreme Court.
Article VI of the Constitution specifies that state legislators and state executive officials are “bound by Oath or Affirmation, to support” the U.S. Constitution. The Supreme Court said in Cooper v. Aaron (1958) that Article VI requires state government officials to enforce the Constitution as interpreted by the Supreme Court. With due respect, Cooper v. Aaron was wrong on that point. Indeed, James Madison—arguably the most important architect of our Constitution—contended that state governments have a legitimate right to defy the Supreme Court when the Court oversteps its constitutional authority.
Congress enacted the alien and sedition acts in 1798. Over the next few years, federal courts applied those laws to convict several people of federal crimes. The Virginia legislature, where Madison served at the time, adopted a series of resolutions criticizing those criminal convictions. Madison wrote an essay, The Report of 1800, defending Virginia’s position. The Report of 1800 explicitly challenged the claim that the Supreme Court has exclusive authority to determine whether a law is constitutional. Madison argued that state governments retain authority “to judge whether the [Constitution] has been dangerously violated” by the federal government.
Notably, Madison contended that federal courts “may exercise . . . dangerous powers beyond the grant of the constitution,” and that states’ authority to resist constitutional violations by the federal government “must extend to violations . . . by the judiciary, as well as by the executive, or the legislature.” Thus, in Madison’s view, state governments have the right to resist judicial decisions by federal courts, including the Supreme Court, when federal courts act beyond the scope of authority granted to them under the Constitution. The Court’s decision in Bruen, like its prior decision in McDonald v. City of Chicago (2010), warrants state defiance because the Court violated the Constitution by acting in excess of its constitutional authority.
Some background is necessary to explain this point. The Second Amendment to the Constitution, adopted in 1791, protects the “right to bear arms.” The Second Amendment is one of a set of constitutional amendments known as the Bill of Rights. From 1791 until after the Civil War, settled constitutional doctrine established that the Bill of Rights constrained the federal government, but did not impose any legally binding constraints on state or local governments. Therefore, state and local governments were free to enact whatever gun control regulations they chose, without any Second Amendment restrictions.
The United States adopted the Fourteenth Amendment in 1868. Unlike the Bill of Rights, the Fourteenth Amendment does impose constitutional restrictions on state governments. In particular, the Due Process Clause specifies that state and local governments may not deprive any person of “life, liberty, or property without due process of law.” The Supreme Court held for the first time in 1897 that the Fourteenth Amendment Due Process Clause made certain restrictions in the Bill of Rights binding on state and local governments.
Then, in a series of decisions between 1925 and 1971, the Court held that some, but not all, Bill of Rights provisions constrain state and local governments. In legal jargon, Bill of Rights provisions constrain state governments only if they are “incorporated” into the Fourteenth Amendment. During this period, the Court consistently held that only “fundamental” rights constrain state governments because the Fourteenth Amendment incorporates only fundamental rights. Applying this framework, the Court decided that the Fourteenth Amendment made the First, Fourth, Sixth, and Eighth Amendments—as well as portions of the Fifth Amendment—binding on state governments. However, the Fourteenth Amendment did not incorporate the Second, Third, or Seventh Amendments. Therefore, those Bill of Rights provisions did not constrain state governments.
The Court’s incorporation doctrine remained unchanged from 1971 until 2010. Then, in 2010, in a lawless exercise of raw power, the Supreme Court decreed in McDonald v. City of Chicago that the Second Amendment right to bear arms is a “fundamental” right that will henceforth constrain state and local governments. The Court’s 5-4 decision in McDonald was a radical departure from two centuries of settled constitutional doctrine, unsupported by any coherent legal rationale. In essence, the Court’s five conservative Justices decided that the Second Amendment right to bear arms constrains state and local governments because they said so. The Court’s recent decision in Bruen merely exacerbates its prior, unconstitutional decision in McDonald.
The Supreme Court decisions in McDonald and Bruen are unconstitutional because they violate the Tenth Amendment, which says that “the powers not delegated to the United States by the Constitution . . . are reserved to the States.” In United States v. Lopez (1995), the Supreme Court said that the power to enact local gun control regulations is NOT delegated to the United States by the Constitution. Therefore, that power is reserved to the states, and the Tenth Amendment bars federal interference with (at least some) state gun control laws, including federal interference by the Supreme Court.
In sum, from 1791 until 2010, a firmly settled constitutional consensus established that the Second Amendment does not impose any constraints on the power of state and local governments to enact sensible gun control regulations to protect the lives of their citizens. I believe that, with the passage of time, that consensus will once again prevail, and the Court’s decisions in McDonald and Bruen will be exposed for what they are: illegitimate attempts by the Court’s conservative Justices to impose their will on blue states. In the words of James Madison, McDonald and Bruen constitute a “manifest usurpation” of the power of state governments to protect the safety of their citizens. Accordingly, relying on Madison as legal authority, state governments should defy the Supreme Court and carry out their ethical duty to save lives by enacting and enforcing laws designed to reduce gun violence.