The Supreme Court's Shift On The 2nd Amendment

NPR's Rachel Martin talks with New Yorker writer Jeffrey Toobin, who says the Supreme Court has shifted its interpretation of the Second Amendment over time.

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RACHEL MARTIN, HOST:

Gun lobby's influence on Congress has been well-documented. After a gunman killed 26 people at Sandy Hook Elementary School in 2012, the NRA warned Congress not to expand background checks to all gun sales. Congress listened, and the Senate failed to pass a bill that would have done just that. New Yorker writer Jeffrey Toobin says the NRA's sway expands beyond the confines of the Capitol building across the street to the U.S. Supreme Court. Jeffrey Toobin joins us now. Thanks so much for being with us.

JEFFREY TOOBIN: Good morning.

MARTIN: More than a decade ago, the Supreme Court ruled that individuals have the right to bear arms, which is, as you write, a fundamental shift in the court's interpretation of the Second Amendment. Can you explain what happened?

TOOBIN: Well, for really more than about 200 years, the understanding of the Second Amendment was that it gave state militias the right to keep and bear arms but not individuals. That changed in 2008 in the famous decision of District of Columbia v. Heller where Justice Scalia for the court said that, under the Second Amendment, individuals had a right to keep handguns in their residences. That's what that case was really about.

But it really opened the door and raised the question of, what else do individuals have in terms of the right to bear arms? And conservatives and the National Rifle Association have been pressing the court for more than a decade now to expand the Heller decision and make sure that individuals have the right to possess more guns, bigger guns and limit restrictions on any sort of handguns - any kind of guns, not just handguns.

MARTIN: So it's unlikely that Congress is going to pass any new gun control measures, even though the recent mass shootings have brought this debate up to the fore again. President Trump yesterday ruled out an assault weapons ban. But let's just say if a gun control measure were to make its way to the Supreme Court, how do you see the new conservative majority ruling?

TOOBIN: Well, this is - this has been a particular project of Justice Clarence Thomas. Justice Clarence Thomas has been saying for years in dissenting opinions and concurring opinions, look, we have established a personal right to bear arms, but we haven't told people the full extent of that right. You know, why is it just handguns? Why are we allowing waiting periods for people to buy guns? Why are we limiting the sales of certain weapons? Why are we allowing concealed carry laws? You know, all of those restrictions on guns Justice Thomas has suggested are constitutionally questionable.

Many states have these restrictions. And Justice Thomas has been agitating at the court for the court to take up the challenges to those laws and reject them. If you look at the backgrounds of Justice Kavanaugh, Justice Gorsuch, the new Trump justices, they appear very sympathetic to that view. Justice Alito has been sympathetic to that view.

The question, as so often is the case at the Supreme Court now, is whether Chief Justice Roberts will join his fellow conservatives in striking down more gun laws. But there is a lot of pressure from conservatives and from the National Rifle Association to start getting those cases up to the Supreme Court and getting more gun laws struck down all across the country.

MARTIN: So despite the fact that there are these renewed calls for stricter gun laws, for stricter regulations, you're seeing signs that when it comes to the court, at least, it could be moving in the entirely opposite direction.

TOOBIN: That's exactly right. And, you know, before this recent crisis, just - President Trump has been very much supportive of expansive understanding of the Second Amendment. He talks about the Second Amendment all the time and the importance of protecting Second Amendment rights. And what's peculiar about the Supreme Court is, since the Heller decision, the court has simply said almost nothing about gun laws. They have simply not explained what the Second Amendment means.

And now, you know, in - there is the very real chance that even if states or the federal government were to pass gun laws - gun restrictions, the Supreme Court would strike them down. That's what a conservative majority on the Supreme Court means.

MARTIN: Jeffrey Toobin, staff writer at The New Yorker. Thanks for your time this morning.

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