The NRA suing the Florida Legislature is like a parent suing the children. That’s Mom and Dad taking Johnny to court because he won’t eat his broccoli.
Of course, the NRA picked as its target a patsy who probably won’t fight back too hard. It doesn’t have the guts to go after its real enemy, the courageous children of Parkland.
Florida Gov. Rick Scott has never been shy about advocating for “state’s rights.” He refused to comply with Obamacare even after the Supreme Court upheld it; and he blocked federal stimulus funds for a high-speed rail line between Tampa and Orlando. Now we’ll see how hard he resists the NRA’s challenge to Florida’s right to regulate handguns.
If the Second Amendment were to be read literally, that would be pretty easy. The language clearly provides that states have the right to regulate the arming of its own citizens: “a well regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.” The most natural reading of those words would seem to imply that the several states have the right to maintain their own militias, and therefore the federal government cannot interfere with the state function of arming (or disarming) its citizens.
However, the plain reading of the amendment has been confused by two Supreme Court opinions dealing with the subject.
The first was Heller v. the District of Columbia. In that case, the court was dealing with a federal entity — the city of Washington. The decision merely held that the D.C. City Council could not prohibit residents from keeping guns in their homes. But since a federal entity clearly was subject to the provisions of the U.S. Constitution, it was not immediately applicable to the states.
But then came McDonald v. City of Chicago. There, four members of the conservative court majority — usually concerned about respecting the autonomy of the states — refused to recognize there might be a distinction between federal and state entities, and automatically applied Heller. The fifth member of the majority, Clarence Thomas, recognized the difference and decided the case not under the Second Amendment, but under the Privileges and Immunities Clause of the Constitution, finding the right to keep a gun in the home for self-defense a fundamental right of U.S. citizenship.
Dissenting Justice John Paul Stevens chided the four-member plurality opinion for failing to acknowledge the difference with Heller: “The Second Amendment is a federalism provision. It is directed at preserving the autonomy of the sovereign States, and its logic therefore resists incorporation by a federal court against the states.” Stevens credited Thomas for separating himself from his conservative colleagues.
Now we will see if Scott stands with the chilldren of Parkland, or with his friends in the NRA.
Frank Askin is distinguished professor emeritus at Rutgers Law School and general counsel emeritus for the ACLU.