I traveled to Louisville, Kentucky last week, for the National Rifle Association’s annual convention. I was there to take part in a program on the D.C. gun control case currently before the Supreme Court, D.C. vs. Heller. But I managed to do a bit of schmoozing with some of the folks there, and even attended a gun-blogger meetup at the Maker’s Mark Bourbon Lounge, where the company and the bourbon were both excellent. The most surprising thing is how happy people were, even before the bourbon kicked in.
I wrote about the Second Amendment quite a bit back in the 1990s (examples here and here) and I used to attend gun-related events regularly. But it had been close to a decade since I had gone to one, and the change in attitude since then struck me as pretty dramatic. In the 1990s, with the Clinton Administration and Congressional Democrats leading a war on gun ownership, gun owners and gun-rights activists were in a defensive crouch. They were gloomy, depressed, and often alienated from the political process. Courts were the domain of the enemy.
I was struck by the contrast this time around. People seemed much happier, and more optimistic. Most, I think, expected that the Democrats would retake the White House in the fall, but they didn’t seem to expect a return to the Clinton gun-grab efforts.
It’s easy to see why. Hillary is now going out of her way to explain what a hunter she’s always been, and how much she values gun rights. Obama is tagging along as best he can, talking about the Second Amendment and the Constitution, though his record as a Director for the virulently anti-gun Joyce Foundation makes that even less persuasive than Hillary’s attempts. But sincerity isn’t the point, since we’re talking politicians here. The point is that they feel they have to lie. Democrats seem to have given up on gun control — they’ve picked up Congressional seats mostly by running pro-gun candidates in conservative districts — and gun-rights people find themselves a constituency that’s now being courted by both parties, rather than being taken for granted by one.
Even the courts seem a bit friendlier, with the Fifth Circuit finding an individual right to arms under the Second Amendment in United States v. Emerson and the D.C. Circuit finding such a right — with teeth, this time — in the Heller case now before the Supreme Court. The conventional wisdom, shared by people on both pro- and anti-gun sides of the issue, is that the court will probably find that the Second Amendment protects some sort of individual right to own a gun, that the right is nonetheless subject to reasonable regulation, and that the District of Columbia’s near-total gun ban violates that right by being too extensive and intrusive to be “reasonable.” This will then leave to the lower courts, and future Supreme Courts, the question of what other regulations might be unreasonable and also — a question not arising in the Heller case because the District of Columbia is a federal enclave and not a state — whether the Second Amendment is “incorporated” via the Fourteenth Amendment so that it applies to the states as well as the federal government, as most other Bill of Rights provisions are and do.
Those decisions will likely stretch over a decade or more and — as I noted in my talk — a single Supreme Court decision doesn’t necessarily accomplish much on its own. Follow-through is crucial, and the Supreme Court over the next decade is likely to feature more than one justice appointed by the next President. Clinton and Obama may try to sound reassuring about guns when they’re running for office, but it’s a safe bet that their Supreme Court nominees will be less friendly to Second Amendment rights than McCain’s.
So does this mean that the NRA crowd has gotten too complacent? Possibly. There hasn’t been a serious threat to gun rights in a decade, and the biggest campaign for the gun-rights crowd has been the expansion of generous concealed-carry laws to cover nearly the entire nation, with restrictions on gun-carrying in places like parks, restaurants, and other public places gradually falling as well. In that kind of environment, it’s easy to lower your guard, and they’ve come a long way from the Charlton Heston “cold, dead hands” days.
On the other hand, in today’s environment, it’s also easy to see where the momentum is – and the Supreme Court is likely to go along or face serious blowback on its unenumerated rights jurisprudence. Give credit where credit is due: For a civil rights group, especially a group dedicated to a civil right that has faced as much sustained attack from politicians and the media as gun rights have, to reach the the point where complacency is a risk is no small accomplishment. Perhaps the gun-rights activists, and the candidates, are merely responding to public sentiment. If so, the gun-rights community really is in the catbird seat. We’ll find out if that confidence is justified soon enough.
Glenn Harlan Reynolds is the Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee. He blogs at InstaPundit.com.