The final week of June brought a flurry of legal action on various gun control laws in the states. In Virginia, it became all but impossible for even experienced experts to know the precise contours of the law at any given moment. This is what sloppy, ignorant, ill-conceived gun control has wrought. Not only does it burden conscientious, law-abiding people, above all others, it undermines the very foundations of the law itself.
Nevertheless, the fog may be lifting, as one court after another weighs in on cases challenging these overreaches. Could it be that the 250th Anniversary of the signing of the Declaration of Independence will also be remembered as the moment when the gun control movement lost control of its signature agenda item: banning America’s most popular guns?
The origins of gun control in the U.S. date back to the immediate post-Civil War era, when southern states implemented curbs on firearms to render freedmen vulnerable to reactionaries and vigilantes. Fortunately, as we recently noted, the U.S. Supreme Court has recognized these laws for what they were: disgraceful outliers and not a true representation of the public understanding of the right to keep and bear arms. Thus, they can no longer be used in legal proceedings to illustrate what sorts of laws have historically coexisted alongside the Second Amendment.
The next major impetus for gun control was anti-immigrant sentiment arising in New York City shortly after the turn of the 20th Century. This prompted “Sullivan’s Law,” which imposed a licensing scheme on the acquisition, possession, and carrying of handguns that could be manipulated to discriminate between groups favored or disfavored by the local authorities. May-issue licensing thus became an important tool in the firearm prohibitionist’s arsenal.
Apart from a law that sought to ban concealable firearms in the U.S. mails, there wasn’t much significant federal activity on gun control until the National Firearms Act of 1934 (the NFA), supposedly spurred by interstate organized crime associated with bootleggers. The federal authorities of the day at least understood that disarming Americans was, to say the least, not an obvious authority conferred upon the U.S. government by the Constitution. Instead, they couched their gun ban in a prohibitively expensive taxation and registration scheme and aimed it at machine guns, suppressors, and “concealable” firearms. Early lobbying efforts by the NRA prevented the planned inclusion of handguns.
It was, however, the handgun – light, portable, easy to hide, and simple to operate – that became the focus of gun control in the states. Mostly, this consisted of licensing and registration schemes, as well as de facto or overt waiting periods.
Meanwhile, the political upheaval and assassinations of the 1960s spurred renewed interest in gun control by the U.S. government, resulting in the Gun Control Act of 1968 (the GCA). This Act contained language insisting that it did not intend to place unwarranted burdens on Americans’ use of firearms for legitimate purposes, including self-defense, rather it was meant to support law enforcement efforts in the states to tackle violent crime. The law enacted a federal system of licensing for commercial firearm businesses, as well as categories of persons prohibited from receiving or possessing firearms. It also regulated the interstate sale of firearms.
The GCA was then amended by the Brady Handgun Violence Prevention Act of 1993, which created the National Instant Criminal Background Check System (NICS), which is queried when a federal firearm licensee (FFL) transfers a firearm to an unlicensed person. The supposed goal of this law is to screen out individuals who are prohibited from acquiring or possessing firearms under federal or state law.
After the enactment of the GCA, however, gun control activism surged, with the avowed goal of banning the possession of handguns by all but police, security, and military forces. By the late 1970s, handgun bans were the law in Washington, D.C., and Chicago, IL. San Francisco also enacted a handgun ban that was eventually found by the state’s highest court to be preempted by California’s own extensive regulation of firearms.
The 1970s were a time of high violent crime, especially in large cities. Many jurisdictions unsuccessfully tried to rein this in by further clamping down on the right to keep and bear arms, especially handguns. But a counter movement arose to liberalize the legality of concealed handgun carry by law-abiding citizens. Florida’s 1987 concealed carry law was considered a pivotal development in this movement, and concealed carry swept the nation.
Eventually, for reasons that criminologists continue to debate, America experienced a sustained nationwide drop in violent crime. This drop coincided with the explosion of lawful concealed carry from coast to coast. As concealed carry grew in popularity, public support for handgun bans plummeted. The gun control movement realized it would need a new gun ban franchise to sustain its momentum.
The movement settled on targeting what came to be known as “military style assault weapons.” These were semi-automatic, magazine fed rifles that resembled certain military rifles. The predominant examples were the AR-15 and semi-automatic variants of the AK-47. While none of these guns was used nearly as often by violent criminals as the common (and heavily regulated) handgun, gun control advocates believed their “menacing” looks, coupled with confusion about how they operated, could generate support for bans.
They were right, and by 1994, the Clinton Administration managed to get a ban on many common semi-automatic rifles, as well as magazine capacity limits, included in a sprawling anti-crime bill making its way through Congress. Fortunately, the ban had a 10-year expiration date, as well as provisions requiring its effectiveness to be studied.
The Clinton gun ban turned out to be a disaster for the gun control movement. The studies showed it had virtually no measurable effect on crime. But it galvanized pro-gun America behind the banned guns and magazines. By the time the ban expired in 2004, Americans had a huge appetite to arm themselves with semi-automatic rifles, and so they did. In time, the AR-15 would be acknowledged by pro- and anti-gun forces as the most popular rifle in America.
In 2008, the U.S. Supreme Court issued its most significant Second Amendment opinion up to that time, confirming the provision protected an individual right to keep and bear arms, including handguns, and to have operable firearms at the ready in one’s own home.
It took the extreme outlier of a handgun ban to get the High Court to reassert the significance of the Second Amendment. Handguns, the majority opinion noted, were the nation’s premier choice for self-defense.
Rather than see the handwriting on the wall, anti-gun jurisdictions doubled down, making handguns even more difficult and expensive to obtain and all but impossible to carry.
Subsequent Supreme Court cases chipped away at these laws, including McDonald v. Chicago (2010), Caetano v. Massachusetts (2016), and New York State Rifle & Pistol Association v. Bruen (2022). Every step in this process required an outlier jurisdiction to ban something the Second Amendment clearly protected. And these anti-gun jurisdictions always accommodated the process, determined to defend the indefensible.
Now, as we have reported elsewhere, Virginia State courts are pushing back against the state’s recently enacted “assault firearm” and “large capacity” magazine laws. And the U.S. Supreme Court has finally accepted two cases for combined review that may resolve the ability of states and localities to ban magazine-fed semi-automatic rifles like the AR-15 once and for all.
What will happen to the firearm prohibition movement if bans on the most popular categories of guns in America are no longer constitutionally permissible? Will the funders and activists who sustain the movement be content merely to chip away the right through the alternative strategy of death by a thousand cuts?
Gun controllers currently have a 1-6 win-loss record before the U.S. Supreme Court since Heller revived the Second Amendment in 2008. While constitutional litigation can never be predicted with certainty, virtually no serious observer of the Second Amendment predicts success for the gun control movement in the semi-auto cases. At least four sitting justices have already expressed strong skepticism about the laws’ validity. And it only takes five to secure a binding judgment.
Will gun control activists ever learn? So far, the answer is a resounding no. Almost all the gun control laws mentioned above have been severely curbed by subsequent judicial and legislative action. And, as we observed, the Supreme Court’s latest opinion on the Second Amendment, Wolford v. Lopez, was notable for the level of exasperation it displayed towards jurisdictions like Hawaii that have refused to comply with the Court’s prior Second Amendment jurisprudence.
What the Court will do next is anybody’s guess. But if the gun control movement ends up with an epochal defeat on their (currently) defining issue, they will have surely brought it on themselves.
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