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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.
The mass shooting in Uvalde, Texas has placed gun violence in the news for the third time in a month. It has also placed gun regulation and debates over the Second Amendment on the political agenda, with some such as Senator Ted Cruz declaring that the Constitution is bar to limits on the right to bear arms.
The Constitution is not an impediment to reasonable gun regulation. The real problems are threefold: The Supreme Court, a lack of political will, and devising policies that will work to address gun violence given the reality of there nearly four hundred million legally owned guns in the United States.
The Original Meaning of the Second Amendment (and why it may not matter)
What does the Second Amendment mean? There are really two issues here. The first is whether the Amendment protects an individual right to bear arms. The second question is if the Amendment does grant an individual right, is that right unlimited or absolute?
Unfortunately, the original text and intent of the Framers of the Amendment is not clear.
When in 1789 James Madison introduced seventeen amendments to the Constitution, one eventually became the Second Amendment. His original wording was: “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed.” Debates in Congress over the meaning and language of the Amendment are in determinative regarding whether it protected an individual right. The same can be said regarding debates in the states regarding ratification of the Second Amendment.
However, until 2008 the few Supreme Court cases that addressed the meaning of the Second Amendment declared that there was no individual right to own guns.
Five decisions are regularly cited regarding the interpretation of the meaning of the Second Amendment. In the earliest decisions, rendered in the aftermath of the Civil War and the ratification of the Fourteenth Amendment, the Court ensured that state militias could support the government by maintaining public order. This interpretation meant that the “right to bear arms” was seen as a collective, not individual right, regulated by Congress and the states.
The first case which provided the Supreme Court’s interpretation of the Second Amendment, United States v. Cruikshank (92 U.S. 542, 1875), rose in that legal context.
A private militia of former Confederate soldiers and members of the Ku Klux Klan attacked a group of Black citizens, who had occupied a courthouse to protect Republican office holders, resulting in the Colfax Massacre of many African-Americans. The federal government prosecuted a small number of the almost one hundred accused perpetrators under the Fourteenth Amendment claim that these white individuals had denied basic constitutional rights (the right to vote, bear arms, assemble, etc.) to the Black citizens they had attacked and/or executed. The Supreme Court found these charges to be vague, and all of the charges were eventually dismissed. The majority opinion noted, “[t]his is one of the amendments that has no other effect than to restrict the powers of the national government.” The Court did not find the Second Amendment applicable to the states or to limiting the actions of other individuals. This decision was reinforced by the only two other decisions rendered by the Court on the Second Amendment in the 20th Century.
The 1886 case of Presser v. Illinois (116 U.S. 252), while arising under different circumstances, reinforced the Cruikshank interpretation of the Second Amendment. Brought by a private white militia in Illinois, which had been constrained by state law from publicly drilling with their weapons, the Court found the Amendment to be “a limitation only on the power of Congress and the national government, and not of the states.”
Similarly, United States v. Miller (307 U.S. 174, 1939), which upheld the constitutionality of the National Firearms Act of 1934, requiring the registering of certain weapons, reinforced the notion that the Second Amendment was a barrier against Congress passing laws that would preclude the state from maintaining an armed militia of its citizens. Because the Second Amendment was seen as a collective right, not an individual right, these decisions made it clear the Court understood the Second Amendment as allowing states to regulate firearm possession and ownership, not inherent to “the preservation or efficiency of a well-regulated militia.” The standard of judicial decision making noted in Miller was the lowest test of “some reasonable relationship” between the regulation and the constitutional guarantee. While this was the status of the constitutional interpretation, the scope of the Second Amendment was not a closed debate post-1939.
Heller and the Individual Right to Bear Arms
Continuing controversies included the following: Does the text of the amendment protect an individual right to keep and bear arms, or is that a collective right maintained within the context of a militia? Until District of Columbia v. Heller (554 U.S. 570) in 2008, the Court had not explicitly addressed this question. The debate between Justices Scalia and Stevens highlights the contrasting ways the Court uses test, history, and precedent in seeking to understand how the language of the Bill of Rights applies in a society centuries removed from that of the Framers.
In Heller, the Court stated only that the Second Amendment protects an individual right. To reach that conclusion the Court engaged in both a tortured textual analysis of the Amendment and a weak amateurish or law office reading of the history of the text.
But in reaching that conclusion the Justice Scalia and the Court did not specify what that right is actually protecting, and he went out of his way to assert that the ruling would not invalidate many traditional restrictions on gun ownership. Moreover, the ruling affects the District of Columbia and the federal government only. The Heller decision did not incorporate the Second Amendment to apply to the states, but in 2010 in Chicago v. McDonald the Court did that, meaning that both the federal and state governments were limited by this Amendment.
Heller resolved the individual-collective right issue. The decision may or may not be correct, but unless a future Court reverses itself or the Constitution is amended, the current reading of the Second Amendment is the law of the land.
What does the Second Amendment Protect?
Does the Second Amendment grant an absolute right to bear arms? The answer is no. No Amendments are absolute. The First Amendment rights to free speech or assembly are not absolute, and there is no reason to think the Second is either. In Heller, the Court seemed to identify the core right of the Second Amendment is to possess guns for self-defense and maybe hunting. But such rights do not mean an unlimited right to possess and use any kind of gun or weapon, and it also does not mean that such rights apply to all equally.
By 2016, all states allowed individuals to carry a concealed weapon; only the District of Columbia prohibited it. Many states adopted “Stand Your Ground” laws that recognize an individual’s right to respond to an imminent threat, without a responsibility to retreat, as long as that individual has a right to be there. Other states passed “Duty to Retreat” laws, which prohibits people from resorting to deadly force in self-defense if they are able to avoid harm by running away or other means. There is also great variance in laws regarding the carrying of concealed weapons on college campuses across the country.
Since McDonald, a large number of cases have been litigated on these and other grounds, but because there is still no clear standard for constitutional analysis for these cases, there have been mixed results in the lower federal courts.
Some state regulations have been upheld as constitutional, while others have been struck down. Among the notable decisions have been that a State may ban firearms on college campuses, DiGiacinto v. Rector and Visitors of George Mason University, 281 Va. 127 (2011); juveniles had no right to carry a handgun, U.S. v. Rene E., 583 F.3d 8 (1st Cir. 2009); no constitutional right to possess machine guns, Hamblen v. U.S., 591 F. 3d 471 (6th Cir. 2009); states may ban felons from possessing firearms, U.S. v. Williams, 616 F. 3d 685 (7th Cir. 2010); and, states may ban persons convicted of domestic violence from possessing firearms, U.S. v. Skoien, 614 F. 3d 638 (7th Cir. 2010). These decisions speak to the dicta penned by Scalia in Heller that many long-standing gun laws may be constitutional and that the Second Amendment, as seems to be the case with other amendments, is not absolute. The point being that the regulation of guns to promote public safety is not absolutely barred by the Second Amendment.
So What is Stopping Regulation of Guns?
There are three issues that really limit the ability to regulate guns to promote public safety.
The first is simply a lack of political will. Specifically, the NRA is a potent lobbying and political force that worked hard for years to secure the Heller and McDonald decisions. They took a page out of the NAACP which did a remarkable job in the twentieth century to overturn segregation. The NRA mobilizes voters. Large percentages of the population support gun rights, as does the Republican Party. Gun advocates vote, those who wish to limit the regulation of guns are not as mobilized by the issue as the latter. This is simple politics.
The second problem is the Supreme Court. The current Court is among the most conservative in history. It supports gun rights and it might invalidate a current New York State law that regulates guns. That law would limit the ability to carry a loaded gun in public. The Court heard oral arguments in November 2021 and it looked like it would strike the law down. How the Court will be affected by the Uvalde is a good question. However, given the leaked opinion potentially striking down abortion rights despite public opposition to that, one doubts that Uvalde will change their mind.
Finally, and maybe most importantly, the problem is what do advocates of gun regulation want to do and what can realistically work to reduce gun violence?
Begin with a reality check. Like it or not, the best estimates are that 40% of US households have guns and there are perhaps 300 million+ guns privately owned in the country. Like it or not, guns are not going away and even if the Supreme Court were to reverse itself and declare there is no individual right to bear arms, all the existing guns are not going away. Like it or not, banning guns in a mass way will produce a firearms bootleg problem that will make alcohol smuggling during Prohibition look like child’s play.
But what are we trying to accomplish with the regulation of guns? Serious policy debate is marred in faulty logic and bad argument.
To start, the phrase “gun control” has simply become a politically charged phrase used by different political parties to mobilize their voters and base.
Second, the phrase or argument “guns don’t kill people, people kill people” is equally misguided. Guns dramatically facilitate violence. One does not see mass killings take place with sticks and knives, and most robberies and other violent crimes involve guns and not other weapons.
What is the Policy Problem and What is the Policy Solution?
Third, our focus on guns is misguided. What are we trying to prevent, or as I ask my students, what is the problem we are trying to prevent?
Some argue that the problem is not guns but mental illness and that the solution to gun violence is to prevent the mentally ill from getting guns. This assumes all mentally ill people are violent and those who are sane are not. Our prisons are full of lots of people who use guns and commit crimes and the law has deemed them sane. There are millions of people in America with mental illness problems and few are violent. But even if preventing the mentally ill from obtaining guns were the solution, it is not clear that universal background checks would catch everyone.
Much of our focus also is on mass killings and the use of assault weapons. Since 1982 there have been 128 mass shootings with 1033 deaths.
In 2018 alone, according to the Center for Disease Control, there were 39,740 deaths due to firearms. Public mass shootings that year constituted only 0.2% (two-tenths of 1 percent) of all firearms deaths that year.
In 2018 13,958 individuals killed themselves that year with guns, constituting 61% of all firearms deaths that year. There are nearly fourteen times more gun suicides per year than there have been deaths by mass shootings in nearly 40 years. An American Journal of Public Health study showed a strong relationship between levels of gun ownership in a state and firearm suicides.
Additionally, among the weapons used in murders in the U.S., FBI information reveals that handguns were the choice in 64% of the crimes. Among suicides, handguns were used 69% of the time. Even in mass shootings, handguns were used 78% of the time. An American Journal of Preventive Medicine article pointed out that rates of gun ownership, especially of handguns, are more associated with homicide in the home than with homicide outside the home. According to a Social Science and Medicine article, handguns are far less likely to be used in self-defense and instead are more associated with domestic violence, especially against women. Despite the belief that mental illness is the underlying cause of mass shootings and gun violence, there is little evidence, according to an American Journal of Public Health Study, among others, that those with mental health problems are more likely to commit violence with a gun than those lacking such a diagnosis. Finally, more than 250,000 guns per year, according to The Trace, are stolen from the proverbial law-abiding owner because they have not been properly secured, and are used in crimes.
The point is that handguns are a potent problem when it comes to suicide, robberies, and domestic assaults. We largely do not discuss these issues. Addressing these problems, along with mass killings and perhaps now racially motivated killings is not a simple problem that can be easily solved. We probably need to have far less guns in our society. We need to make cultural changes that address the link between patriotism, Americanism, and guns. We need to find a way to develop alternative ways to resolve disputes or anger that are not facilitated by guns.
The problem thus is not the Second Amendment. It is the political will and desire to address violence in America with the development of effective public policies and not political slogans.
