In 2008, Kamala Harris signed on to a District Attorneys' friend-of-the-court brief in D.C. v. Heller, the Supreme Court's leading Second Amendment case. Of course, she may have changed her views on the Second Amendment since then (perhaps in light of precedents such as Heller); and she may have different personal views than the ones she expressed as a D.A. (though note that she signed on to the brief as a signatory, and not just as a lawyer for the signatories). But this brief likely tells us something about her views on the Second Amendment.
[1.] To begin with, the brief urged the Court to reverse the decision below, and thus to reinstate D.C.'s handgun ban. Thus, Harris's view in that case was that the Second Amendment doesn't preclude total bans on handgun possession.
[2.] The brief also came at a time when the great majority of federal courts (including the Ninth Circuit, which covered Harris's jurisdiction, San Francisco) viewed the Second Amendment as not securing any meaningful individual right of members of the public to personally keep and bear arms. Rather, those courts viewed the Second Amendment as endorsing (to quote the then-existing Ninth Circuit precedent, which the brief itself later cited),
the "collective rights" model, [which] asserts that the Second Amendment right to "bear arms" guarantees the right of the people to maintain effective state militias, but does not provide any type of individual right to own or possess weapons.
Under this theory of the amendment, the federal and state governments have the full authority to enact prohibitions and restrictions on the use and possession of firearms, subject only to generally applicable constitutional constraints, such as due process, equal protection, and the like.
And the brief supported that majority view among federal courts: Affirming the D.C. Circuit decision, which rejected the collective rights model and recognized an individual right to own guns,
could inadvertently call into question the well settled Second Amendment principles under which countless state and local criminal firearms laws have been upheld by courts nationwide.
Thus, Harris's view in that case was thus that the "collective rights" view of the Second Amendment was correct, since that was the "settled Second Amendment principle[]" in lower federal courts at the time.
[3.] Now the brief also said that "The District Attorneys do not focus on the reasons for the reversal [that it was urging], however, leaving these arguments to Petitioners and other amici." Nonetheless, it argued that,
For nearly seventy years, courts have consistently sustained criminal firearms laws against Second Amendment challenges by holding that, [among other things], (i) the Second Amendment provides only a militia-related right to bear arms, (ii) the Second Amendment does not apply to legislation passed by state or local governments, and (iii) the restrictions bear a reasonable relationship to protecting public safety and thus do not violate a personal constitutional right. The lower court's decision, however, creates a broad private right to possess any firearm that is a "lineal descendant" of a founding era weapon and that is in "common use" with a "military application" today.
The federal and state courts have upheld state and local firearms laws, as well as criminal convictions thereunder, against Second Amendment challenges on three primary grounds. In holding the D.C. laws at issue to be unconstitutional, the decision below undermines each of these grounds, which also could be cast into doubt by an affirmance in this case.
First, courts nationwide have upheld criminal gun laws on the basis that the Second Amendment provides only a militia-related right to bear arms. See, e.g., Scott v. Goethals, No. 3-04-CV-0855, 2004 WL 1857156, at *2 (N.D. Tex. Aug. 18, 2004) (affirming conviction under Texas Penal Code 46.02 for unlawfully carrying a handgun because Second Amendment does not provide a private right to keep and bear arms); Silveira v. Lockyer, 312 F.3d 1052,1087 (9th Cir. 2003) (holding that California residents challenging constitutionality of California's Assault Weapons Control Act lacked standing because Second Amendment provides militia-related right to keep and bear arms); State v. Brecunier, 564 N.W.2d 365, 370 (Iowa 1997) (upholding firearm sentence enhancement because defendant "had no constitutional right to be armed while interfering with lawful police activity").
The lower court's sweeping reasoning undermines each of the principal reasons invoked by those courts that have upheld criminal firearms laws under the Second Amendment time and again. First, under the lower court's analysis, the Constitution protects a broad "individual" constitutional right, one that is not militia-related, to possess firearms.
This certainly seems to me like approval of the principle listed as (i) in the brief, which is the view that "the Second Amendment provides only a militia-related right to bear arms."
Now perhaps this passage could be read as simply describing what courts were doing, or as suggesting that the Supreme Court could either adopt principle (i) or perhaps some of the other principles instead. But it certainly sounds to me like an endorsement of the "only a militia-related right to bear arms" view, especially since that's the lower federal courts' "well settled Second Amendment principle[]" to which the brief had earlier alluded (see item 2 above).
Plus principle (ii) is an endorsement of the view (rejected by the Court two years later in McDonald v. City of Chicago) that states and localities can institute whatever gun bans they want (even total gun bans) without violating the Second Amendment. And even if we focus on principle (iii), under which gun laws are constitutional if they "bear a reasonable relationship to protecting public safety," the brief was supporting a total handgun banif that is permissible on the theory that it "bear[s] a reasonable relationship to protecting public safety," then I would think a total ban on all guns would be, too.
The brief closed with a suggestion that "the Court exercise judicial restraint and explicitly limit its decision to the three discrete provisions of the D.C. Code on which it granted certiorari" (the handgun ban, a licensing requirement, and the requirement that guns be stored disassembled or bound with a trigger lock), because "This would avoid needless confusion and uncertainty about the continued viability and stare decisiseffect of this Court'sand other courts'prior Second Amendment jurisprudence."
This passage doesn't expressly urge the Court to adopt a particular line of reasoning. But, again, the first principle that the brief mentioned, and the one most clearly consistent with lower federal courts' "prior Second Amendment jurisprudence," was that the Second Amendment didn't secure an individual right that ordinary citizens could exercise in their daily lives. It sounds like that is at least one approach that the brief is endorsing.
So, to summarize:
An article by Cam Edwards (Bearing Arms) on Aug. 11 made a similar argument in concluding that"Kamala Harris Doesn't Think You Have the Right To Own a Gun" (to quote its original title), but an Agence-France Press "Fact Check" on Aug. 18labeled that claim "false." I find the "Fact Check" quite unpersuasive, at least as to the specific question of Harris's views on the right to own a gun.
AFP writes, "Rather than outright opposition to gun ownership, Harris has supportedlegislation aimed at increasing safety." It may well be that Harris wouldn't promote a statute banning guns outright. But her brief states that she thinks governments have the constitutional power to ban at least all handguns, and likely guns more generally.
AFP writes, "Nor has she called for the destruction of the Second Amendment, whichsays: 'A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.'" But she has endorsed, as I read it, the view that the Second Amendment doesn't protect a normal individual right to own guns, rather protecting only a "collective right" under which states can limit gun ownership to members of a state-designated "militia."
AFP goes on to say, "Legal scholars, however, say that although Harris supported the amicus brief, it is false to conclude from it that she believesas the article claims'you don't have the right to own a gun'":
"The brief in question is not about whether there is an individual right under the Second Amendment. It is about the crime-related consequences of invalidating the DC handgun law at issue in Heller," Aziz Huq, of the University of Chicago Law School, told AFP by email. Huq studies how constitutional design interacts with individual rights and liberties.
Adam Winkler, a specialist in gun policy at the UCLA School of Law, made a similar argument.
"This statement is false," he said of the article's claim.
"The brief she supported argued that DC's gun laws should be upheld but not because there was no right to own a gun," Winkler said in an email to AFP.
"Rather, the brief argued that the laws should be upheld because there is a tradition of gun restrictions, and DC's were reasonable regulations," said Winkler, the author of "Gunfight: The Battle Over the Right to Bear Arms in America."
Again, for the reasons I gave above, I think Profs. Huq and Winkler are mistaken. The brief does seem to endorse the collective rights view of the Second Amendment, under which there really is no right to own a gun. And, again, at the very least the brief endorses the view that all handguns could be banned, consistently with the Second Amendment.
Finally, the brief turns to another scholar:
The amicus brief which Harris joined argued "that at least as far as the Second Amendment is concerned, it doesn't relate to private rights," said [Jake] Charles, of the Duke Center for Firearms Law.
But he added: "I'm not sure it's fair to claim that as her current position given that the Supreme Court decided in Heller that people do have that right, and I haven't seen her questioning the Heller decision."
Here, I agree that (1) the amicus brief does take the view that the Second Amendment doesn't protect any "private rights," and (2) we can't be certain that this remains her view today. But it is at least plausible that her views about the subject haven't changed, and that if she could participate in reshaping the Supreme Court, she would reshape it in favor of reversing the Heller decision, and moving the law back to a view under which "the Second Amendment doesn't relate to private rights."
More here:
Kamala Harris on the Second Amendment Reason.com - Reason
- Civics education: Learn the basics of why the Second Amendment exists - Tennessean - May 1st, 2024 [May 1st, 2024]
- The Future of the Second Amendment - Berkeley Law - April 18th, 2024 [April 18th, 2024]
- Mental Health Firearms Bill Divides Second Amendment Supporters in State House - NH Journal - April 18th, 2024 [April 18th, 2024]
- Biden Administration Unlawfully Expands Background Checks on Firearms Sales - Kevin Cramer - April 18th, 2024 [April 18th, 2024]
- The Second Amendment and 18-to-20-Year-Olds - Reason - March 29th, 2024 [March 29th, 2024]
- Chatbots like crime, hate firearms: A Second Amendment study - Washington Examiner - March 29th, 2024 [March 29th, 2024]
- OK: Oppose H.J.R. 1034, Unless Amended! | GOA - Gun Owners of America - March 29th, 2024 [March 29th, 2024]
- Republicans blast Biden admin's 'Red Flag Operation' as one that will 'violate' Second Amendment rights - Fox News - March 29th, 2024 [March 29th, 2024]
- Gordon Signed Four Second Amendment Bills, Vetoed Another - WyoToday.com - March 29th, 2024 [March 29th, 2024]
- A new resource center in the DOJ has a lot of people worried about their Second Amendment rights - Tri-State Alert - March 29th, 2024 [March 29th, 2024]
- 'It Has Everything to Do With Race': Protesters Clash Outside Kyle Rittenhouse Event - Yahoo News UK - March 29th, 2024 [March 29th, 2024]
- Governor signs firearm bills, vetoes bill to repeal gun-free zones - Buckrail - March 29th, 2024 [March 29th, 2024]
- FISA and the Second Amendment: Gun Owners Beware - RealClearPolicy - February 3rd, 2024 [February 3rd, 2024]
- Second Amendment protects the rest | Commentary | norfolkdailynews.com - Norfolk Daily News - February 3rd, 2024 [February 3rd, 2024]
- Ricketts Signs Brief to Defend Gun Owners and Second Amendment - Rural Radio Network - February 3rd, 2024 [February 3rd, 2024]
- Dems bow to local control on guns then take it away | BRAUCHLER - coloradopolitics.com - February 3rd, 2024 [February 3rd, 2024]
- Augusta County Second Amendment guy wants to protect schoolkids from books? - Augusta Free Press - February 3rd, 2024 [February 3rd, 2024]
- The 2nd Amendment is not about Hunting - WIBC - Indianapolis News & Politics - October 27th, 2023 [October 27th, 2023]
- Opinion: Protecting Our Second Amendment Rights in St. Louis ... - The Missouri Times - October 27th, 2023 [October 27th, 2023]
- Statement by Vice President Kamala Harris on the Mass Shooting in ... - The White House - October 27th, 2023 [October 27th, 2023]
- Letter: Second Amendment matters more than ever - Quad-City Times - October 27th, 2023 [October 27th, 2023]
- The Supreme Court is seriously considering whether domestic ... - Vox.com - October 27th, 2023 [October 27th, 2023]
- Letter urging House Speaker to act on gun violence sent hours prior ... - Woodland Daily Democrat - October 27th, 2023 [October 27th, 2023]
- Vermont: Gun-Controllers Are Abandoning Their Rural Roots - NRA ILA - October 27th, 2023 [October 27th, 2023]
- Foundation prepares to disburse roughly $32 million in legal aid ... - The Florida Bar - October 27th, 2023 [October 27th, 2023]
- Critics Sock Sean Hannity Over His Bizarre Personal 'Plan' For Mass ... - Yahoo! Voices - October 27th, 2023 [October 27th, 2023]
- Second Amendment Roundup: Fusillade of Amicus Briefs Filed in Rahimi - Reason - October 12th, 2023 [October 12th, 2023]
- 12 Defensive Gun Uses Bare Absurdity of Attacking Gun Rights - Daily Signal - October 12th, 2023 [October 12th, 2023]
- Horrific Attack In Israel Shows Critical Importance Of Second Amendment In America | David Hookstead - Outkick - October 12th, 2023 [October 12th, 2023]
- OPINION: Second Amendment rights deserve protection - The ... - Stanly News & Press - October 12th, 2023 [October 12th, 2023]
- Noel Hudson: What, exactly, was the well-regulated militia? - VTDigger - October 12th, 2023 [October 12th, 2023]
- Berkshire residents and officials join the debate at the statehouse ... - Berkshire Eagle - October 12th, 2023 [October 12th, 2023]
- Old gun controls that were constitutionally repealed are not precedents for modern gun control - Reason - October 7th, 2023 [October 7th, 2023]
- Rahimi: The Case That Might Turn the Court Even More Extreme on Guns - The New Republic - October 7th, 2023 [October 7th, 2023]
- Second Amendment proponents fear public health emergencies ... - The Statehouse File - October 7th, 2023 [October 7th, 2023]
- UGA political groups debate the Second Amendment at political ... - Red and Black - October 7th, 2023 [October 7th, 2023]
- From the Second Amendment to OxyContin Settlements, Here Are ... - WTTW News - October 7th, 2023 [October 7th, 2023]
- Goldwater Institute Urges Supreme Court to Respect Second ... - The Creative Corner - October 7th, 2023 [October 7th, 2023]
- I carry a firearm daily. Second Amendment rights are not absolute. - Daily Kos - October 7th, 2023 [October 7th, 2023]
- Free Lecture - To Trust the People with Arms: The Supreme Court ... - Buckeye Firearms Association - October 7th, 2023 [October 7th, 2023]
- Federal Judge Enjoins Several Maryland Restrictions on Carrying ... - Reason - October 7th, 2023 [October 7th, 2023]
- Guest columnist Lee Armstrong: Taking 2nd Amendment to extremes - GazetteNET - August 26th, 2023 [August 26th, 2023]
- Analysis: ACLU Warns of Government Overreach in Second ... - The Reload - August 26th, 2023 [August 26th, 2023]
- Madison's Militia: The Hidden History of the Second Amendment, by ... - Shepherd Express - August 26th, 2023 [August 26th, 2023]
- Massachusetts Judge Rules Law Against Carrying Guns Across ... - The Reload - August 26th, 2023 [August 26th, 2023]
- It's Not Hard to Tell Good Guy From Bad Guy, as 12 More Defensive ... - Heritage.org - August 26th, 2023 [August 26th, 2023]
- NRA-ILA Files Friend of the Court Brief Urging the Eighth Circuit to ... - NRA ILA - August 26th, 2023 [August 26th, 2023]
- Panhandling ordinance amendments pass first Council vote - Mountain Xpress - August 26th, 2023 [August 26th, 2023]
- Florida's New Concealed Carry Law: What You Need to Know - Hernando Sun - August 26th, 2023 [August 26th, 2023]
- Why did PragerU lie about being approved in Texas schools? - Reckon - August 26th, 2023 [August 26th, 2023]
- No longer a cold war, the Tennessee House and Senate are not ... - News Channel 5 Nashville - August 26th, 2023 [August 26th, 2023]
- What's News, Breaking: Tuesday, August 22, 2023 - Brooklyn Daily Eagle - August 26th, 2023 [August 26th, 2023]
- Sparse turnout for gun rights rally with Kyle Rittenhouse after Michigan gun reform laws signed Michigan Advance - Michigan Advance - July 21st, 2023 [July 21st, 2023]
- Tom Huckin: A misinterpretation of the Constitution leads to disastrous consequences - Salt Lake Tribune - July 21st, 2023 [July 21st, 2023]
- Debate on Second Amendment | News, Sports, Jobs - Williamsport Sun-Gazette - July 21st, 2023 [July 21st, 2023]
- Sorry, Gov. Newsom, but Citizens Want to Use Guns to Defend ... - Heritage.org - July 21st, 2023 [July 21st, 2023]
- D-Wave Quantum Inc. Enter into the Limited Waiver and Second Amendment to Loan and Security Agreement with PSPIB Unitas Investments II Inc -... - July 21st, 2023 [July 21st, 2023]
- Federal Judge Rejects Lawsuit to Uphold Texas Suppressor Law for ... - The Texan - July 21st, 2023 [July 21st, 2023]
- Governor's Council approves all 7 of Healey's pardon ... - WBUR News - July 21st, 2023 [July 21st, 2023]
- Jonah Goldberg: Why July is the cruelest month for GOP presidential ... - The Winchester Star - July 21st, 2023 [July 21st, 2023]
- Second Amendment Roundup: U.S. Seeking Cert on Prohibited Persons % - Reason - May 30th, 2023 [May 30th, 2023]
- 2nd Amendment Quotes for Hot Topics - Everyday Power - May 30th, 2023 [May 30th, 2023]
- ICYMI: Buffalo News Editorial: Gun Laws and a More Sensible ... - ny.gov - May 30th, 2023 [May 30th, 2023]
- Opinion | Prince William needs gun-free zones - The Washington Post - May 30th, 2023 [May 30th, 2023]
- Second Federal Judge Expands Block on Biden Pistol-Brace Ban as ... - The Reload - May 30th, 2023 [May 30th, 2023]
- Editorial: Mayor's order of support for trans citizens contrasts with the ... - St. Louis Post-Dispatch - May 30th, 2023 [May 30th, 2023]
- Simple answer isn't workable - Las Vegas Sun - May 30th, 2023 [May 30th, 2023]
- DeSantis and the Road to the White House - The Media Line - May 30th, 2023 [May 30th, 2023]
- Should gun stores be allowed near schools? These parents are ... - Reckon - May 30th, 2023 [May 30th, 2023]
- Hawaii Agrees to Drop Baton Ban After Losing Court Fight - The Reload - May 30th, 2023 [May 30th, 2023]
- Demise of S.F. exaggerated. It's still a great city to visit - San Francisco Chronicle - May 30th, 2023 [May 30th, 2023]
- ESAs consult to amend technical standards on the mapping of ... - ESMA - May 30th, 2023 [May 30th, 2023]
- 'Not tools of self-defense': Ferguson makes case for Washington's ... - The Columbian - May 30th, 2023 [May 30th, 2023]
- Lawrence ODonnell Airs Old Clip of Republican Chief Justice Calling the Second Amendment a Fraud on the American Public - Mediaite - March 31st, 2023 [March 31st, 2023]
- Marshall University Prof: Cops and Vets Earn Their Second Amendment Rights Through Months of Training - The Truth About Guns - February 28th, 2023 [February 28th, 2023]
- Interpretation: The Second Amendment | Constitution Center - January 27th, 2023 [January 27th, 2023]
- Senate panel okays Tax Laws (Second Amendment) Bill: Fixed tax scheme gets nod to bring 2m retailers into tax net - The News International - December 23rd, 2022 [December 23rd, 2022]
- Gohmert: Without a change to how children are taught, 'We're going to have to get rid of the Second Amendment' - Fox News - December 18th, 2022 [December 18th, 2022]
- Minim, Inc. and Cadence Connectivity, Inc. Enter Second Amendment to Loan and Security Agreement with Silicon Valley Bank - Marketscreener.com - December 18th, 2022 [December 18th, 2022]
- Opinion: Let's talk about repealing the Second Amendment - The Connecticut Mirror - December 12th, 2022 [December 12th, 2022]