OSD 341: The courts are not coming

When seconds count, the courts are decades away.

Stephen Gutowski wrote a good breakdown of the Fifth Circuit declining to strike down the National Firearms Act’s suppressor regulations in US v. Peterson. George Peterson had been arrested and charged with, among other things, possessing an unregistered suppressor. After he lost an appeal in the Fifth Circuit, this past May Peterson was joined by the Department of Justice in asking for a rehearing. The DOJ softened its prior stance, saying that while it stood by its prosecution of Peterson, it now disagreed with the Fifth Circuit’s initial ruling that suppressors enjoy no Second Amendment protection.

The Fifth Circuit heard the case again, and now they agree that suppressors are arms within the meaning of the Second Amendment. But, the court said, the NFA is essentially a shall-issue permitting scheme, and the Supreme Court mentioned in Bruen that those are constitutional. So the NFA stands.

On one hand, sure. Obviously. A federal circuit court isn’t going to come out of nowhere and strike down the NFA.

On the other hand, why not? Courts are supposed to be the last line of defense for individual rights against executive tyrannies or legislative mobs. Their job is to step into the breach exactly when it’s hardest.

But empirically they don’t do that. Every major violation of rights in American history has come before the Supreme Court, and in almost every instance, they’ve declined to do anything to stop it. Slavery and segregation were before the Court repeatedly. So were the New Deal’s destruction of economic freedoms and, a few years later, the summary internment of every person with Japanese blood in the western half of the continental US. Ditto the COVID lockdowns, the ongoing dismantlement of the Fourth Amendment, and the tyranny of local zoning codes and permitting rules. The vast majority of the federal government is unconstitutional under any reasonable reading of the Commerce Clause, and the bricks of that now-towering edifice were laid by the Supreme Court with one assenting ruling after the next.

In every instance, federal courts generally and the Supreme Court specifically have been a mirror for society. They don’t lead, and as a rule they don’t rush to the rescue of the government’s victims. Instead they reflect the way society is going anyway. Abortion is the useful example, because there they had it both ways — for when that was the vibe, against when the vibe changed.

This isn’t the story you hear about the courts, and they have to cultivate an air of detachment. But things couldn’t be another way. Courts have no enforcement power. They can nibble at the edges and occasionally do something unpopular, but that political capital runs out. Judges come from the society that they rule on. Their rulings will either tend to agree with that society, or they’ll be replaced by someone more agreeable. That doesn’t even require malicious action from anyone. It’s just a description of what the system selects for.

We’ve written a lot about this:

Courts don’t vindicate rights. They show up a few decades later to rubber-stamp whatever decision the culture made long ago.

There’s a positive lesson in that from OSD 166:

What really keeps gun rights healthy isn’t a court coming in to save the day at the last second. It’s people liking gun rights to the point that the question never needs to go to court.

The Supreme Court can help around the edges. But it has never demonstrated an ability to turn a popular tide. It ratifies what’s coming anyway. Either the Court gets on board, or people keep trying until it agrees with them.

And in a sense, good. If you were worried about what five people in Washington think, don’t be. The good news is that in practice, they can’t tell people what to do. They can just say what people were going to do anyway.

You have a lot more control over the culture than you do over the Supreme Court. So it’s a good thing that the culture matters more than the Court does.

---

This week’s links

Our own Chuck R. on the Connecting with Conservation podcast

Stories from taking 1000 Meta employees to the range.

---

About Open Source Defense

OSD Capital

We invest in civilian defense and all adjacent tech. Anything that increases individual freedom, self-sufficiency, or decentralization. Reach out.

OSD podcast

In-depth interviews with outstanding founders and builders in the civilian defense industry.

The company store

Grab a t-shirt or a sticker.

Discord server

The OSD team is there along with lots of subscribers. Become a paid Substack subscriber to join the chat.