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.
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.
