Texas decided to take a more conservative approach (as we often did during the years of the Bush administration). We were not only going to defend the Second Amendment as an individual right to keep and bear arms, but we were going to advocate for robust judicial scrutiny for laws infringing on that right. In other words, we argued that the Second Amendment is real and that it protects a concrete right that matters for millions of law-abiding patriots across the nation.
While the Supreme Court was considering Heller, I recall a conversation I had with members of the Washington Post editorial board. The Post, like the New York Times and most other papers, leans left—sometimes very much so. I spent about thirty minutes on the phone arguing to the Post editorial board that they should support Mr. Heller. The reason, I argued, is that they—along with every other journalist—should be committed to a robust First Amendment. To a First Amendment, that is, that vigorously protects freedom of speech and freedom of the press, which ensures their ability to carry out their vital function. And I argued to the editorial board that if they wanted to defend a robust First Amendment, they should be disquieted by an effort effectively to read the Second Amendment out of the Constitution. That if courts were empowered to take away one amendment, they could very well try to erase other amendments as well. And so, even if the editorial writers might support gun control as a policy matter, they should be adamantly against the Court’s eliminating individual rights expressly protected in the Bill of Rights. Astonishingly enough, the Post agreed with me and wrote an editorial in support of the constitutional right to keep and bear arms. It was no small victory.
When the decision came down, Dick Anthony Heller prevailed by a vote of 5–4. The majority opinion was authored by Justice Antonin Scalia, and it remains perhaps the finest opinion Justice Scalia ever wrote.
The Court upheld the individual right to keep and bear arms in the Second Amendment and struck down the District of Columbia’s total ban on possessing a functional firearm at home. Under the D.C. law, if a single mom kept a disassembled shotgun in her closet and a criminal broke into her apartment to attack her family, she would herself become a criminal if she assembled the shotgun in order to ward him off. In other words, the law took away the fundamental right to protect yourself in the District of Columbia. Justice Scalia, writing for the Court’s majority, emphatically rejected the constitutionality of that total prohibition. The Court established an individual right to keep and bear arms for those civilian weapons “in common use” at the time. By any measure, handguns met that test, so D.C.’s total ban on handguns was unconstitutional.
The District of Columbia had criminalized the exercise of this cherished and indispensable right to self-defense. The Supreme Court rightly rejected D.C.’s blanket prohibition. Justice Scalia, writing for the Court’s majority, largely adopted the test that Texas and the other amici states had urged—a more rigorous standard of scrutiny than the lenient standard that the Bush Department of Justice had put forward in its own brief.
Two years later, in McDonald v. City of Chicago, the Court finished the journey that we had urged it to begin in Heller. In McDonald, the Court rightly concluded that the individual right to keep and bear arms is a fundamental right that is, in turn, incorporated against the states. After McDonald, it is not just the District of Columbia, but also all the fifty states and every local government that is prohibited from infringing upon our fundamental individual right to keep and bear arms.
Both Heller and McDonald were decided at the Court by single-vote majorities. In both cases, four justices dissented and argued that there was not any enforceable individual right to keep and bear arms.
To be clear, they were not writing in favor of any particular legislation that was reasonable or permissible, or in favor of any particular gun control–policy proposal. Rather, they objected to the idea that the Second Amendment protects any individual right whatsoever, which means that the federal government or any of the states could ban any and all firearms and make it a felony for you personally to possess a gun.
Under the dissenters’ view, you would have no individual right even to challenge these laws in court. And you could be sent to prison for violating those laws. The consequence of that truly radical view is that the Second Amendment would effectively be erased from the Bill of Rights.
Four justices support that radical proposition. Hillary Clinton, in 2016, pledged to appoint only Supreme Court justices who would vote to overturn Heller—in other words, would vote to overturn and take away the individual right of every single American to keep and bear arms. And we are one vote away from that result.
As a policy matter, gun-control laws are singularly ineffective. If the objective is to stop violent crime, restricting the rights of law-abiding citizens simply does not work.
I care passionately about stopping violent crime, and gun crime in particular. I’ve spent much of my adult life in law enforcement, trying to stop violent criminals who prey on the innocent and working to ensure that they receive the most stringent punishments.
In Texas, I was in Sutherland Springs—the site of the worst church shooting in U.S. history—the day after that brutal mass murder. I stood in that bloody sanctuary and mourned with grieving families.
I was in the Santa Fe High School just hours after the horrific shooting that left ten people—eight students and two teachers—dead.
I was in Dallas for the funeral service of five police officers shot and killed on July 7, 2016.
I was in Odessa right after the mass shooting killed eight.
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