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Want Meaningful Gun Regulations? First Rein in the Supreme Court.

Given the Court’s extreme new stance on the Second Amendment, it’s time to consider removing the issue from the federal judiciary’s jurisdiction.
February 23, 2023
Want Meaningful Gun Regulations? First Rein in the Supreme Court.
Supporters of gun control and firearm safety measures hold a protest rally outside the US Supreme Court (Photo by SAUL LOEB / AFP) (Photo by SAUL LOEB/AFP via Getty Images)

The 79th mass shooting of the year occurred early Sunday morning, when a gunman killed one person and left seven injured in Memphis, Tennessee. (The Gun Violence Archive defines mass shootings as involving “a minimum of four victims shot, either injured or killed, not including any shooter.”) This was less than a week after three Michigan State University students were killed in a firearms rampage on campus—and five years to the day after seventeen people were gunned down at Marjory Stoneman Douglas High School in Parkland, Florida. With hundreds of millions of firearms in circulation in the United States—a 2018 analysis put the number over 390 million, meaning that there are more guns than there are Americans, and that was before the huge pandemic-era spike in gun sales—the upward trend of senseless gun massacres in America shows no signs of abating.

To be sure, a major barrier to reform is that right-leaning politicians are afraid to support even the most basic restrictions on gun possession for fear of losing power. President Joe Biden signed into law the most significant gun legislation bill in thirty years, but relative to gun restrictions in other countries, its provisions—such as tougher background checks for buyers under 21 and funding to encourage states to implement “red flag” laws to remove guns from those considered a threat—are dismayingly weak.

In June of last year, the U.S. Supreme Court made things immeasurably worse. Prior to New York Rifle & Pistol Ass’n v. Bruen, voters had space to elect representatives in state and federal legislatures who might be collectively willing to pass reasonable gun safety laws. That changed when the Supreme Court’s six-justice conservative majority constitutionally tied the hands of state legislatures, ensuring they cannot achieve meaningful public safety reform around gun violence.

The most obvious answer to the Supreme Court’s clampdown on gun reform would be a constitutional amendment to the Second Amendment. Good luck with that.

But there is another option, having to do with Congress’s express constitutional power to restrict the federal judiciary’s ability to review Second Amendment cases in the first place. It sounds far-fetched, but the existing precedent on this issue—albeit thin and dated—gives Congress loads of authority here.

Let’s start with a few words about the implications of the Bruen decision. More than a century ago, New York state enacted laws making it a crime to possess a firearm in public without a license, but allowed individuals to “have or carry” a concealed “pistol or revolver” if they could demonstrate “proper cause”—a term that subsequent state court decisions defined as “a special need for self-protection distinguishable from that of the general community.” In its Bruen ruling last year, the U.S. Supreme Court struck down the New York statutes on Second and Fourteenth Amendment grounds, effectively drawing a barrier of constitutional protection around guns that could prove legislatively insurmountable.

In Justice Clarence Thomas’s opinion for the 6-3 majority, he laid out a new test for laws that bump against what he called the Second Amendment’s “unqualified command” to protect “public carry”: The government, he wrote, must now “justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Applying the new test to New York’s law—which, again, was not new but had been on the books for half the age of our constitutional system—he concluded that “American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense” or made public carry contingent on a showing of a special need. So under the Bruen holding, when judges are asked to rule on whether a particular gun law is constitutionally permissible, they must dig into the history books (or maybe jump into a time machine) to determine whether there is “an American tradition” of analogous gun laws. Thomas does not offer specific criteria for determining what snippets of history will now make a particular gun restriction part of a “historical tradition” (and therefore okay) instead of a dispensible rule from an “outlier jurisdiction” (and therefore not okay)—but there is no escaping the fact that it is a significantly subjective call. Under his own test, Thomas acknowledged “the support that postbellum Texas provides” for “New York’s proper-cause requirement.” He simply chose to ignore it.

It didn’t have to be this way. Prior to 2008, the Court construed the Second Amendment’s “obvious purpose” as “to assure the continuation and render possible the effectiveness of” militias, which were composed of “civilians primarily, soldiers on occasion” who “when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” The longstanding militias-only reading was scrapped in District of Columbia v. Heller, when the Court for the first time read the Second Amendment to protect the individual right to bear arms—but only for handguns and only in the home for self-defense.

Bruen extended the self-defense rationale outside the home, paving the way for other sensible public safety laws to be declared unconstitutional and precluding legislatures—and voters—from curbing guns in the streets. Applying Bruen, a federal judge in West Virginia ruled in October that a law prohibiting possession of firearms with altered or removed serial numbers was unconstitutional. In November, a federal district judge in Texas ruled that a federal law prohibiting people with restraining orders against them from possessing firearms was unconstitutional. This month, the U.S. Court of Appeals for the Fifth Circuit overturned the conviction of a man who had violated the same federal law—with the judges noting that the law’s aims of keeping domestic abusers from possessing firearms were “laudable” and “salutary,” but that they were forced by the Bruen decision to deem it unconstitutional.

So if anything is to be done about guns in America, something needs to be done about the Supreme Court.

While Congress has discretion to create the lower federal courts, which it did starting in 1789 with the first Judiciary Act, the Constitution specifically establishes “one” Supreme Court. With rare exceptions, the Constitution also confines the Supreme Court’s authority to reviewing cases filed in the first place in the lower courts. Article III, section 2, clause 2 specifically provides that such “appellate Jurisdiction, both as to Law and Fact,” is restrained by “such Exceptions, and under such Regulations as the Congress shall make.” This so-called Exceptions Clause means that Congress can narrow the categories of cases the Supreme Court can consider on appeal.

In 1869, the Court thus held in Ex parte McCardle that Congress had the constitutional power to strip the Court of its authority to hear petitions under the Habeas Corpus Act of 1867, which provided access to Supreme Court review for persons in custody denied a constitutional right. During post-Civil War Reconstruction, William McCardle, a newspaper editor, was arrested and jailed for sedition after criticizing a Union military commander and Congress. After the Court had already heard the case, Congress passed and President Andrew Johnson signed legislation removing the Supreme Court’s jurisdiction to hear appeals under the 1867 law. In its opinion, the Court reasoned that “without jurisdiction, the court cannot proceed at all in any cause” and refused “to inquire into the motives of the legislature.” In language that seems strikingly textualist (and thus conservative) to the modern ear, it wrote of Congress’s constitutional authority: “We can only examine into its power under the Constitution, and the power to make exceptions to the appellate jurisdiction of this court is given by express words.”

Republicans in Congress have tried to strip the federal courts of their jurisdiction many times since. In 2003, for example, Rep. Orrin Hatch (R-Utah) introduced a bill to ban federal courts from hearing First Amendment challenges to mandates that public school students cite the Pledge of Allegiance, including its “under God” verbiage. No shortage of other Republicans have in recent decades called for “jurisdiction stripping” to keep the courts out of areas where conservatives dislike how they have tended to rule—including abortion, same-sex marriage, prayer in school. Indeed, back in the 1980s, when congressional Republicans were considering several jurisdiction-stripping laws, a young Reagan administration lawyer named John Roberts defended the constitutionality of such measures.

And jurisdiction-stripping isn’t the only kind of restraint on the courts that Republicans have proposed. In 2005, Rep. Ron Lewis (R-Ky.) introduced the Congressional Accountability for Judicial Activism Act, which would have allowed Congress to reverse a Supreme Court judgment by two-thirds vote. Although Lewis’s proposal might not survive McCardle, Congress could, at least in theory, pass a law mandating that Supreme Court decisions on constitutional issues be unanimous, as the president of the Catholic League for Religious and Civil Rights once argued.

More to the point, if Congress somehow managed to reinstate its 1994 bipartisan law banning assault weapons and high-capacity magazines, it could prevent the Supreme Court from striking it down on appeal by “excepting”—or taking away—that class of cases from the Court’s jurisdiction. Likewise, if a state legislature were to pass a restrictive gun law in the name of public safety, Congress could protect it from Supreme Court interference by altering its appellate job description.

No doubt, as with the debate over whether Congress should legislatively increase the number of Supreme Court justices (i.e., “Court-packing”), critics would argue that a jurisdiction-stripping law aimed at the Second Amendment would turn the scope of the Court’s docket into a political football, vulnerable to the whims of congressional majorities and White House occupants. Moreover, given what little precedent exists on the subject of congressional attempts to strip the Court of its jurisdiction, the current majority could vote to strike down a law that restricts its power. But nothing in the Constitution’s text gives it the final say on these matters. The Court gave itself that role in the landmark 1803 decision, Marbury v. Madison, and no enforcement mechanism exists to ensure that the other branches—or the people—follow its edicts.

Limiting the Supreme Court’s jurisdiction on Second Amendment matters would at least have the benefit of keeping voters in the loop. As it stands, the Court has so severely constrained the ability of the elected officials in state legislatures and in Congress to restrict guns that law-abiding parents are mostly left to just teach their children to duck, run, and hide.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.