The Second Amendment Dialogue at Fed Soc’s National Convention

“Applying the Text and History Methodology to Looming Second Amendment Battles After Rahimi” was the focus of a session at the Federalist Society’s 2024 National Lawyers Convention on November 16. The discussion can be accessed here.

The moderator, Sixth Circuit Judge Amul Thapar, known for his book The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him, led the panel with three esteemed speakers in the field of Second Amendment rights.

Mark W. Smith, a Senior Fellow at the Ave Maria School of Law and Host of the Four Boxes Diner Second Amendment Channel, emphasized the importance of the text-first-history-second approach used by the Supreme Court in Heller and further explained in Bruen. Smith highlighted the significance of analyzing historical laws that impacted the right to bear arms and determining how and why they restricted this right. He stressed the need to evaluate whether the underlying principles of these historical laws align with modern firearm regulations under scrutiny in current legal battles, as demonstrated in Rahimi.

One of the key aspects discussed by Smith was the level of generality at which these principles should be drawn, a point also raised by Justice Barrett in her concurrence in Rahimi. Smith proposed a method for courts and litigants to verify their interpretations against the “third rails” of the analogical process, ensuring that historical principles are not drawn too broadly.

1. 1. The principle contradicts the founding era understanding of the Second Amendment text.
   2. The principle violates established Supreme Court precedent, such as the protection of arms in common use as outlined in Heller.
   3. The principle prioritizes concerns of criminal misuse over the rights of law-abiding citizens.
   4. The principle disregards the core purpose of the Second Amendment, which is to safeguard the right of self-defense and prevent tyranny, invasion, and criminal activities.
   5. The principle allows restrictions on activities related to firearms that were common during the Founding era, implying that courts should not endorse principles that would criminalize actions that were commonplace among the Founders.

David Thompson, a partner at Cooper & Kirk, echoed the need to scrutinize historical principles for errors in the level of generality at which they are applied. He cited bans on arms in common use as an example of regulations that cross these “third rails,” mentioning a recent ruling by the D.C. Circuit that endorsed such a ban based on the concept of arms capable of unprecedented lethality.

Thompson argued that this historical principle conflicted with several of the “third rails” identified by Smith, including Supreme Court precedent and the fundamental purpose of the Second Amendment to empower law-abiding citizens. He emphasized that the common use test aligns with the true principles underlying the Second Amendment, as demonstrated by the widespread ownership of AR-15 rifles for lawful purposes.

Professor William Merkel of the Charleston School of Law offered a contrasting viewpoint, asserting that Heller was incorrectly decided and that the Second Amendment does not safeguard an individual right to bear arms.

The Federalist Society’s National Lawyers Convention has consistently included discussions on the Second Amendment, fostering valuable dialogue on this important issue. The insights shared at this session are crucial for ongoing legal debates in this area.