Top Constitutional Lawyers Explain What the Second Amendment Really Says About Gun Control
"[The Supreme Court] has not recognized an absolute right of everybody to bear arms."
Mic
Top Constitutional Lawyers Explain What the Second Amendment Really Says About Gun Control
By Jake Miller
1 hour ago
In the wake of the shooting in San Bernardino,
California, prominent conservative politicians have again squashed
momentum to step up gun regulation, using the Second Amendment to make
their case for maintaining the status quo.
The day after the shooting, Republican
presidential candidate and Texas Sen. Ted Cruz predicted that the
shootings would lead to renewed calls for gun control.
"The goal of both President Obama and
Hillary Clinton is to consistently — at every turn — weaken the
constitutional rights of American citizens," he told Breitbart News in an interview. "In particular, to undermine our constitutional right to keep and bear arms."
Similarly, at the beginning of President Barack Obama's recent address to the nation from the Oval Office, Republican frontrunner Donald Trump tweeted: "Hope he won't spend too much time ripping apart the 2nd Amendment!" Carly Fiorina responded to Obama's speech similarly, saying,
"I get really frustrated when I hear Barack Obama ... trample on our
constitution and starts talking about taking away our Second Amendment
rights."
This kind of absolutism on gun
laws is nothing new. Conservatives have spent years making the case that
any form of increased gun control is an affront to Americans'
constitutional rights as provided by the Second Amendment.
"There will be no compromise," Wayne LaPierre, CEO and executive vice president of the National Rifle Association, declared in a speech to the United Nations in 2012. "American gun owners will never surrender our Second Amendment freedom. Period."
Mic spoke with several top
constitutional lawyers who reject outright the notion that the Second
Amendment prohibits increased limitations on access to guns. Instead,
they argue that the Constitution actually allows for a number of gun
regulations which have been proposed in Congress, including universal background checks and bans on assault weapons.
While it may come as a surprise to today's
conservative politicians, even today's Supreme Court has interpreted the
Second Amendment to allow for these types of reforms.
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The background: The current debate
over gun control has its roots in the very founding of the United
States, when the Second Amendment was included in the Bill of Rights: "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."
For almost 200 years after it was adopted,
the Second Amendment was interpreted to protect the right for militias
to bear arms, but not individuals. In 1939, the Supreme Court ruled in United States v. Miller that restricting access to shotguns or machine guns by citizens outside the military was permissible.
"The right to bear arms was thought to
ensure well-regulated state militias," Harvard constitutional law
professor Richard J. Fallon told Mic. "Regulation of firearms was permissible as long as it did not interfere with state militias."
Historically, conservatives actually tended to support
gun control, seeing it as a way to stop crime. That changed in the
1970s, when conservatives began to make the argument that the Second
Amendments protects individuals, rather than just the military.
"The country grew more conservative, but the predominant brand became self-reliance," Fallon told Mic.
"It was in this political and cultural climate that the National Rifle
Association started to argue the position that the right to bear arms
for hunting and individual self-defense was regulated by the Second
Amendment."
The most important recent Supreme Court decision dealing with gun regulation came in 2008, when the court ruled in the case District of Columbia v. Heller.
At issue was the constitutionality of the District's ban on handguns,
which at the time was one of the most restrictive in the country. In a
5-4 decision, the court struck down the ban, claiming it infringed on an
individual right, namely "the right of the people to keep and bear
arms." However, the court also explicitly stated that while owning
handguns is protected as an individual right, possession of "dangerous
and unusual weapons" is not.
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Despite that distinction, conservative politicians have argued that the Heller
ruling does not permit any change to current federal gun laws. For
example, in 2013, shortly after the Sandy Hook massacre, Cruz vehemently
opposed a bill to regulate high-capacity ammunition and assault weapons.
"The Second Amendment exists to
ensure that law-abiding Americans can protect their homes and families,
and I look forward to helping lead the fight to defeat this bill and to
protect our constitutional right to keep and bear arms," he said at the time.
Leading Republicans have also criticized
reforms to close what many consider loopholes in background check
process for gun purchasers. Two weeks ago, for example, 49 Republican senators voted against
a failed bill that would have expanded background checks and closed the
so-called gun show loophole, with Florida Sen. Marco Rubio stating that such an expansion "would impede the Second Amendment right of a large number of Americans."
What these politicians get wrong: Those absolutist positions were never supported by the Supreme Court's Heller ruling, which was intentionally narrow.
"Heller set out sort of a bare-bones
holding that there is a constitutionally protected right to bear arms,
but most of the hard questions have not yet been considered by the
Supreme Court," Fallon told Mic. "Although the Supreme Court has
recognized a Second Amendment right to bear arms, it has not recognized
an absolute right of everybody to bear arms, of all kinds, at all
places, in all circumstances."
Other constitutional lawyers go even further, saying that although conservatives may not want to admit it, Heller actually paved the way for more gun control restrictions.
"I believe 'assault weapons' are indeed what the court had in mind when it wrote in Heller about 'dangerous and unusual weapons," Harvard Law professor and renowned legal scholar Laurence Tribe told Mic. "I believe military-style assault weapons will never be protected by the court in the name of the Second Amendment."
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Tribe also believes expanded background checks are constitutional and do not violate the Second Amendment.
"Computerized background checks obviously
lack direct historical analogues, but laws that permit them may be the
only practical way to keep guns away from felons and the mentally ill,
Tribe wrote in his 2014 book Uncertain Justice: The Roberts Court and the Constitution. "Under Heller, then, they should unquestionably be deemed constitutional."
Progress is possible: The only thing
the Supreme Court has absolutely ruled out, according to Tribe, is a
large-scale government seizure of all guns, a fear conservatives have
heavily perpetuated. Trump recently told
a crowd in South Carolina that he had heard Obama was considering an
executive order "to take your guns away." That could never actually
happen, even if the president or Congress wanted to do it, so long as
the Second Amendment exists.
Short of that, Tribe is clear that the Second Amendment does not stand in the way of gun legislation to make the country safer.
"The largest misconception is that
the Second Amendment justifies — or ever has justified — our nation's
abysmal record in protecting innocent people from avoidable gun
violence," Tribe told Mic. "The Second Amendment and the Constitution as a whole are abused by those who treat them as a sick suicide pact."
So while there is a legitimate political
debate to be had about the merits of gun control, Tribe says
conservatives are wrong to make it a constitutional issue.
"The obstacles to the needed
degree of protection are partly technological, and mostly psychological
and cultural and thus political, rather than constitutional," he said.
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