Honest people can disagree with the Founders’ decision to enshrine the Second Amendment within the Bill of Rights. They cannot, however, pretend that decision never happened. For much of the 20th Century, however, gun control activists tried to convince the public that “the right of the people to keep and bear Arms” had nothing to do with the right of individuals to keep and carry guns for their own self-protection. That charade – never convincing to anyone who could read – has been debunked by the U.S. Supreme Court no less than four times in the last 15 years. But Second Amendment denialism remains an active strain of the firearm prohibition effort, as demonstrated by a federal judge in Colorado who ruled last week that whatever the provision means, it does not include the right to buy a gun.
That decision came in the case of Rocky Mountain Gun Owners v. Polis, which challenged Colorado’s three day waiting period for firearm purchases. Proponents of the law undoubtedly knew it was in trouble after the U.S. Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen, which clarified how lower courts are to analyze challenges to gun control laws under the Second Amendment. Bruen stated: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” This test likely spells doom for Colorado’s waiting period, as laws of that type were completely unknown to the generation that adopted the Second Amendment.
Faced with this reality, Judge John L. Kane – appointed to the federal bench by Jimmy Carter in 1977 – decided to stretch reason to the breaking point by deciding the right to possess a firearm doesn’t include the right to acquire one.
The court began its analysis by acknowledging that the Second Amendment right articulated by the U.S. Supreme Court in the 2008 case of District of Columbia v. Heller meant “the individual right to possess and carry weapons in case of confrontation.” But then Judge Kane went on to insist: “[P]urchase and delivery are one means of creating the opportunity to ‘have weapons.’ The relevant question is whether the plain text covers that specific means. It does not.”
According to this “reasoning,” a state could completely ban the sale and delivery of firearms without implicating the Second Amendment. This would imply a right to have something, but not to obtain it through the most obvious and ordinary means.
Of course, it’s true that the Second Amendment says nothing explicitly about buying and receiving guns. But it’s also true the First Amendment says nothing explicitly about buying and receiving newspapers. Nevertheless, any judge insisting a ban on newspaper sales would not implicate the First Amendment prohibition on “abridging the freedom of speech, or of the press” would in doing so disgrace himself and ruin his professional and intellectual credibility.
Perhaps recognizing this, Judge Kane hedged his bets by offering a number of alternative theories about why Colorado’s waiting period did not infringe the Second Amendment.
First, he theorized, “Even if purchasing a firearm could be read into the terms ‘keep’ or ‘bear,’ receipt of a firearm without any delay could not be, as the Founders would not have expected instant, widespread availability of the firearm of their choice.” Judge Kane attempted to bolster this argument by pointing to “expert” testimony that indicated firearm purchases at the time of the founding were not as convenient, prompt, or accessible as they are today.
But even these “experts” acknowledged this was because technology, production, and marketing were circumstantially more primitive in those days, not because legislators made a deliberate choice to delay firearm purchases. Of course, virtually nothing that involved the delivery of a good was as efficient and accessible to the founding generation as it is in modern times. But the U.S. Supreme Court has repeatedly made clear that it will not tolerate “frivolous” arguments that 18th Century technological limitations delineate the scope of constitutional rights in the present day, including in a Second Amendment case that dealt with stun guns.
Next, Judge Kane pointed to language in Heller that he claimed rendered “presumptively lawful” any regulation on “the conditions or qualifications” of the “commercial sale of firearms.” He then argued: “Colorado’s Waiting-Period Act regulates only the sale, and specifically sellers, of firearms. … The Act does not apply to anyone who does not ‘sell a firearm.’”
Putting aside the fact that the disputed issues in Heller had nothing to do with firearm sales, much less mandatory waiting periods, Judge Kane was again resorting to frivolous formalism in attempting to stake his reasoning on the distinction between sellers and purchasers. Colorado’s waiting period imposes an arbitrary and de facto impediment on the purchase of guns, thereby implicating the rights of buyers at least as much as sellers. Returning to the First Amendment, no one would take seriously an argument that a person’s First Amendment right to access information was not implicated just because a particular restraint applied to a publisher or bookseller and not the reader himself.
Meanwhile, the language Judge Kane invoked to argue the Supreme Court allows firearm sales to be regulated cuts against his primary ruling by suggesting the Supreme Court considers such sales as the default starting point under the Second Amendment.
But Judge Kane wasn’t finished, and proposed yet another reason why Colorado’s waiting period is consistent with the Second Amendment, even if he were wrong about everything else. Again, while acknowledging – as the parties themselves agreed – that waiting periods for firearm purchases were unknown in American law until well into the 20th Century, he still found them consistent with America’s historical tradition of firearm regulation. This was because, he said, “our Nation had a historical tradition of regulating the carrying and use of firearms by intoxicated individuals,” and “the Waiting-Period Act and the intoxication laws both work to prevent individuals in a temporary impulsive state from irresponsibly using a firearm.”
Judge Kane was dismissive of plaintiffs’ attempts to point out the obvious distinction that intoxication speaks to the condition of a particular individual in a particular moment, while the waiting period broadly applies to firearm sales generally, regardless of the buyer’s condition or state of mind. His response to this fundamental difference was that the intoxication laws affected all intoxicated persons, some of whom also might not have behaved irresponsibly with a firearm.
Judge Kane’s final gambit was to suggest that the Supreme Court had indicated a general openness to shall-issue licensing schemes for carrying firearms, so long as they were not directed to “abusive ends.” This, he said, was analogous to the waiting period, because both require a “defined requirement” to be met before exercise of the right, and plaintiffs had not proven the waiting period was abusive.
Judge Kane offered no limiting principles for what sorts of laws purportedly aimed at impulsive or irresponsible behavior or that imposed “defined requirements” prior to the exercise of the right to keep and bear arms might be permissible under the Second Amendment. But it’s difficult to understand how his reasoning would be distinguishable from the “interest-balancing” the Supreme Court specifically rejected in Bruen, which likewise focused on why the government purported to be acting, not on whether such actions were well-established in American history.
There is perhaps no legal rule so clear and unequivocal that it cannot be purposely misconstrued by a judge who is more interested in his preferred outcome than in actually following the law. But if the Polis case shows anything about Bruen’s historical test, it’s that it makes spotting such judges easier than ever.