No Right to Atomic Bombs or to Fight the Government: What the Second Amendment Really Means

Contrary to what many think, the courts have not ruled that the purpose of the Second
Amendment is to take up arms against the US Government or kill lots of people. It instead supports a narrow notion of personal self-defense.

The language of the Second Amendment is cryptic.  Among the questions surrounding interpretations of it are whether the Amendment protects an individual right to bear arms and what  type of restrictions, if any does it permit.  Unfortunately, the US Supreme Court’s legal history regarding the Second Amendment is thin, with less than a half-dozen opinions on it.  Prior to 2008 in three separate decisions, the Supreme Court largely rejected or ignored claims that the Second Amendment protected an individual right and that the government–at all levels–was powerless to regulate guns.

But in 2008 in Heller v. District of Columbia the Supreme Court ruled that the Second Amendment did protect an individual right to bear arms.  Drawing upon historical evidence of the constitutional framers and a close reading of the sentence structure of the amendment, the Court concluded that: “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”  But in reaching that conclusion the Court made two important qualifications.

First, the Court said that the right to bear arms is grounded in the right of confrontation or self-defense.  We have a personal right to bear arms to protect our personal security.  The law that was challenged in Heller encroached upon that personal right of guns for that purpose.  At no point did the Court assert–as some claim–that we have a right to bear arms to take up defense or fight against the United States government.  Waging war against the United States, as the Constitution declares, is treason, or at least a serious crime.  The entire idea of a right of revolution against the government is located not in the Constitution but the Declaration of Independence.  This right to armed revolution  against the government is a concept found in British political theory and the struggle against a tyrannical king.  Thomas Jefferson and others invoked this language as then British  subjects against King George III in England, but the Declaration of Independence really has no constitutional or legal significance.   The Constitution provides for the ballot box and not bullets as a means to resolve political grievances.

Second, the Supreme Court in Heller was clear that the Second Amendment was not absolute.  It pointed out that “the right was not unlimited, just as the First Amendment's right of free speech was not.”  The First Amendment imposes, for example, time, manner, and place restrictions on speech, and certain types of expression, such as child pornography or extortion are forms of speech devoid of any constitutional protection.

Heller declared that they did “not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation.”  While the Court refused to enumerate what types of  restrictions it would permit, it did say that among others, laws restricting the “possession  of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” would be permitted.  Subsequent to Heller, lower courts have upheld many other restrictions on guns.  In short, the Second Amendment is about personal self-defense, and that does not include the right to own automatic or semi-automatic weapons, or many of the other arms of choice used in mass killings.

The point is that the Second Amendment is no barrier to the types of public safety, common  sense restrictions on guns that large majorities of the population support.  Reasonable efforts to regulate gun violence are permitted.  The real problem then is not the Constitution, it is the lack of political will in Washington, D.C. and across the country to defy special interests and do their job.

The Second Amendment is not a Bar to Reasonable Gun Regulation (The American people are the problem)

Yet again another mass murder in the US and yet again another round of calls for gun control

regulation followed by yet again claims that the Second Amendment bars any legislative action. This has led some to call for a constitutional amendment repealing or modifying the Second Amendment.  The reality is that there is no need to amend the Constitution.  Congress and the states have sufficient constitutional power to act if they want.  The issue is not the Constitution, or even the NRA.  Instead it is political will and resolve...among the American people.
Some thought the debate and public opinion on guns would have changed after 20 young children and six adults were slaughtered at Sandy Hook Elementary School.  A few states acted but little changed. The NRA in typical fashion said the solution was more guns.  Now a terrorist attack in San Bernardino kills 14 and the NRA is in the position of defending policies that make it easy for terrorists to get assault rifles.  The ludicrousness of their positions should be enough to discredit them and their lobbying power. But it will not be.
The NRA has argued 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 will mental illness problems and few are violent. But even is preventing the mentally ill from obtaining guns were the solution, without universal background checks that policy is impossible to enforce.  But this fact does not really matter.
Claiming that everyone should be armed and that we can defend ourselves is false.  It reeks of images of the shootout at the OK Corral or it assumes abilities to respond that few people have.  Go talk to the police or those in the military about how much training it takes to use a gun.  And think about also how much criticism there is even now regarding police use of deadly force and it should be obvious that more guns are not going to make us safer.  But this fact does not really matter.
It would perhaps be easier to refute the NRA’s claims but it bullied Congress yet again in July 2015 into preventing the Center for Disease Control from researching gun violence.  But there is research from outside the US that examines gun violence that challenges claims that guns make us safer.  But the facts from this research do not really matter.
And of course the NRA can bring out its biggest weapon–invoking the Second Amendment. Advocates of gun control can whine to their hearts content about the Second Amendment but the reality is that it exists.  Moreover, while many might argue the Supreme Court was wrong in its 2008 D.C. v. Heller opinion where a majority ruled that the Amendment protected an individual right to bear arms, the reality is that this is what the Court said.  But it is also important to recognize something else about that opinion–the Court did not rule that all gun regulations are unconstitutional.  As the Court declared:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

Even in Heller the Court recognized that limits on who could own a gun, where and when, and the types of guns permitted could all be enforced.  Case law before and after Heller have upheld bans on guns in schools, religious institutions, and public buildings.  Regulations banning specific types of guns are permitted, and rules governing sales have too been upheld.  Probably the only law that would not be constitutional would be a flat ban on personal possession of a gun for personal safety in the home.  Beyond that, most regulations are constitutional.  Otherwise, no one has a constitutional right to own an atomic bomb.
The point is that the Second Amendment is not a legal bar to gun regulation.  The problem is political will.  There is simply not enough political will in this country to act.   Calling for a constitutional amendment is foolish.  If there was enough political will to pass a constitutional amendment there would be enough political will to enact meaningful legislation to control gun violence.
Whatever the facts are about guns, they really do not matter.  Facts are not issue here.  It is even more than the pure lobbying power and intimidation of the NRA that is at issue.  Yes they hide behind the Second Amendment and cowboy myths of American rugged individualism to prevent the regulation of guns.  They use fear of crime, political imagery, and the power of money, lobbying, and influence to prevent politicians from acting. But the NRA has millions of members.  The NRA and its supports are geniuses–they have figured out how to mobilize divided public opinion, gerrymandered safe political districts, and other tools of influence to prevent meaningful gun regulation.  Our gun policies are a symptom of a grid locked political system and public opinion which is simply divided.  Until such time as the public is act all the facts in the world will not matter.