A Constitutional Case for Gun Control

Supreme Court briefs are not known for their colorful writing. Readers are far more likely to encounter austere Latin legalisms than gripping personal narratives. Yet March for Our Lives chose to upend this norm in its amicus brief—a legal filing written by an interested outside party—in the upcoming Supreme Court case New York State Rifle & Pistol Association Inc. v. City of New York. Its brief “presents the voices and stories of young people from Parkland, Florida, to South Central Los Angeles who have been affected directly and indirectly by gun violence.”

The Supreme Court confirmed earlier this month that it would hear the case later this term, its first gun-rights case in nearly a decade. At issue is whether a New York City regulation that prevents licensed gun owners from transporting their firearms to second homes or gun ranges outside the city runs afoul of the Second Amendment.

The stakes are high: The case offers the Court’s conservative wing a vehicle to further solidify legal barriers to firearm regulation, a decades-long project that has thus far been quite successful—in part due to the appeal of a unified constitutional narrative that pro-gun voices have invoked across both the legal and the political spheres. The Second Amendment, they say, protects an individual’s right to gun ownership, a right rooted in deeply held notions of self-defense and individual reliance.

For decades, gun-control advocates have left this narrative partially unanswered, offering depressing statistics but no compelling constitutional principle. They cannot afford to do so any longer. The March for Our Lives brief marks the beginning of a long-needed effort to offer a pro-gun-control constitutional narrative, one that calls attention to the constitutional rights and goods vindicated by gun regulation. These include a collective understanding of self-defense, as well as constitutional guarantees such as the right to public assembly and interests such as access to public education. The point is that the right to bear arms is not the only constitutional commitment implicated in the guns debate, and the Court ought to consider those other commitments as worth balancing with the right to bear arms, not as inherently subordinate to it.

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We call our foundational legal text a Constitution because it constitutes our legal and political reality. The March for Our Lives brief is a reminder to the Court that it cannot ignore the world it creates through its interpretation of the Second Amendment. The brief asks the Court to confront the consequences of the gun lobby’s myopic approach, and it does so by bringing in the voices of young people whose lives have been upended by gun violence.

It recounts the narratives of Aalayah Eastmond, a Marjory Stoneman Douglas student who “saw blood pooling on the floor” and a fellow student “slumped against the wall, dead”; Jackson Mittleman, a sixth grader who comforted the siblings of victims of the Sandy Hook shooting as they contemplated the loss of their 6-year-old brother; and Brooke Harrison, another Stoneman Douglas student, who saw “a lifelong friend” shot at his desk and was forced to “watch ... his body go limp.”

Gun-control advocates have long been making these sorts of arguments outside the legal sphere, at town halls and televised rallies. The March for Our Lives brief takes its inspiration from these more democratic arenas and brings that approach into the courtroom.

This differs markedly from the legal arguments gun-control advocates have used for decades. In courtrooms and law schools, advocates for regulation have traditionally made their case with more anodyne tools—textual analysis and statistics. They have staked their claim on the textual reasoning that the word militia in the Second Amendment puts regulation of individual civilian gun ownership beyond the amendment’s scope. Regarding statistics, consider the brief filed by the American Academy of Pediatrics in the landmark 2008 gun-rights case District of Columbia v. Heller, which cited more than 50 academic or governmental studies on gun violence and related issues.

Conservative supporters of gun rights have long known that such approaches, on their own, are insufficient. Consider the amicus brief filed in Heller by then–Texas Solicitor General Ted Cruz, which cited figures such as George Mason and James Madison to paint a picture of an individual right that was core to the American idea. As Cruz wrote, “The Framers were understandably wary of standing armies and the powers of a potentially oppressive government.” On this view, an individual right to bear arms ensures “a citizenry capable of defending its rights by force, when all other means have failed, against any future oppression.” This narrative does not just rely on dry points of law—it tells a story in which gun regulation is simply un-American and runs contrary to familiar values such as liberty, individualism, and opposition to tyranny.

Gun-control advocates need their own constitutional narrative, one that incorporates a broader conception of self-defense into its vision. Since Heller, the Court has drawn a straight line connecting the broader, constitutionally grounded right to self-defense to the more specific right to individual gun ownership. But defense of oneself and one’s family can be pursued in a variety of ways. An individual right to gun ownership offers one path, deputizing all people to defend themselves with a firearm at their side. Gun regulation offers another such path to self-defense, one vastly more efficacious and preferred by the American public. It represents a mode of preemptive self-defense, whereby the state is tasked by its citizens with limiting access to deadly force.

On this view, when we urge the government to enact universal background checks, raise the legal age to purchase firearms from 18 to 21, and ban the sale of assault weapons, we are seeking to use the government’s regulatory authority—rather than, say, the arming of every schoolteacher—to defend ourselves and our children. That the gun-rights movement has somehow managed to monopolize the constitutional mantle of “self-defense” is as impressive a PR feat as it is absurd.

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In addition to self-defense, other obvious rights and interests of constitutional magnitude are imperiled by gun violence and vindicated by regulation. The right to assembly is put at risk when a single shooter can rain bullets on a peaceful political protest. Freedom of the press is undermined when published words can give way to mass murder, as occurred at The Capital’s Annapolis, Maryland, office in 2018. Other cherished constitutional interests, such as the freedom to vote or access to public education, cannot be secured when mass shootings are a constant specter outside polling places or at the schoolhouse gate. And this is to say nothing of the value of protecting life, a fundamental basis of the Constitution itself that is incompatible with an ever-expanding conception of the Second Amendment.

Even when upholding gun regulations, American courts rarely, if ever, reference these counterbalancing constitutional values. Instead, regulation is presented in sterile, technocratic terms—at best permissible, but never a constitutionally inspired imperative. How can courts do otherwise when they lack a narrative that locates these values at the heart of the constitutional debate over guns?

Constitutional narratives drawn from the contemporary world are, admittedly, a bit novel in today’s legal arena. This is, in part, the result of a decades-long effort by right-leaning gun advocates, lawyers, and scholars to frame arguments that rely on anything but the Constitution’s text and the original values recognized at the time of the founding as not constitutionally valid. Their interpretive methodologies—aptly named “textualism” and “originalism”—deny constitutional imprimatur to rights and interests that cannot be identified in the Constitution’s plain text or found in narratives premised on the writings of long-dead men.

But it need not be this way. In the words of Supreme Court Justice Robert Jackson, constitutional interpretation that ignores its real-world implications “will convert the constitutional Bill of Rights into a suicide pact.” Jackson surely had no idea how literal his suicide metaphor would become. Constitutional narratives that account for the world they engender and the way they balance competing rights offer an answer to his admonition, infusing constitutional debates with practical lessons drawn from reality.

Such narratives are not merely politically expedient. They have long been an integral component of our constitutional culture, shaping popular understanding of our Constitution and, in turn, judicial decisions that reflect this understanding. By connecting the Constitution to those whose lives it governs and the values that motivate them, constitutional narratives are a distinctively democratic form of argument.

In one of the most famous works of legal scholarship of the 20th century, the late Yale law professor Robert Cover wrote, “No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.” According to Cover, narrative is what gives law moral authority, what imbues it with the power not to compel mere obedience, but to embody the legitimate choices of those it governs. It is why Thurgood Marshall, then a lawyer arguing Brown v. Board, emphasized the psychological harm inflicted on African American children by segregation, rather than appealing to the text of the Equal Protection Clause or constitutional doctrine alone. Law is a distinctly human endeavor, and narrative is what connects dry legal text to the world it creates.

Gun-control advocates must reclaim the Constitution from the pro-gun lobby. The March for Our Lives brief is a step toward building a constitutional architecture that makes room for these sidelined constitutional values, one that properly integrates law with reality. It recognizes the pain of those whose lives have been upended by the elevation of founding-era mythology above present-day tragedy. And by putting the gun violence permeating America’s streets and schools directly in front of the Supreme Court as it confronts a high-profile case, the brief ensures that this narrative will be heard.