In any debate about guns in America, there’s one aspect that’s seemingly inescapable: the moment when the National Rifle Association (NRA) or other defenders of an anything-goes gun policy recite the second amendment from memory.
Perhaps no subsection of a political movement is so passionately animated by a clause of the US constitution. As many a gun enthusiast is eager to say, gun regulation is a non-starter; the second amendment is the law of the land, so the government can’t tell me what to do with my guns.
But those seeking sensible gun regulation – like the 83% of Americans who support a mandatory waiting period for buying a gun and the 67% of Americans who agree with a ban on assault weapons – should not just accept the distortion of the second amendment as fact. Instead, they should loudly respond that gun regulation’s proponents, not the NRA, are the true defenders of the second amendment. In fact, both supreme court case law and the text of the second amendment itself support reasonable regulations on guns. As written, the constitution and the second amendment permit precisely the kind of regulation Congress should enact.
In 1991, former Chief Justice Warren Burger, a Republican appointee, explained why the text of the Second Amendment affirms the importance of gun regulation. The first words of the amendment, Burger pointed out, are “a well regulated Militia.” This language presupposes the idea that the militias should be regulated. So, Burger reasoned, if the amendment rests on the assumption that well-trained state armies could be regulated, then it is sensible to think it also allows Congress to regulate guns among the general citizenry.
The constitutional argument for gun regulation also goes beyond the Second Amendment. The Constitution’s preamble speaks of the need to “insure domestic Tranquility”—a fundamental task of any government that can be aided by regulating deadly weapons. The recent tragedy in Florida—merely the newest in a line of one numbing bloodbath after another, a crisis that no other developed country on earth suffers from—has made it clear that our schools, hospitals, and military are anything but tranquil. In places where they once would have thought themselves safe, citizens fear another attack.
This is not only unacceptable, but it also demonstrates how far our country has strayed from a central constitutional principle. The preamble’s call for “domestic Tranquility” and the Second Amendment’s embrace of regulation do not merely allow Congress to act to regulate guns; they impel Congress to do so.
What about the worry that some forms of regulation still violate the second amendment? As Burger said in 1991, the idea that the second amendment prohibits gun regulation is “one of the greatest pieces of fraud – I repeat the word fraud – on the American public by special interest groups that I have ever seen in my lifetime.” And Burger’s view of the amendment squares with what the supreme court has said more recently.
In the landmark case District of Columbia v Heller, Justice Scalia ruled for the first time in American history that the second amendment protected individual gun rights. He held that a Washington, DC police officer with extensive firearms training had a right to own a gun and store it in his home. The Court ruled that the amendment protected individuals, not just members of a militia. Scalia, however, made it clear that the DC gun law restricting almost all gun ownership was an extreme on the spectrum of regulation—but also that such as spectrum existed. He argued that many other types of regulation did not conflict with the Second Amendment—even as it was first understood in our young nation: bans on assault weapons, Scalia wrote, are “fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”
All of the regulation proposals now on the table would clearly fit within the definition of “well-regulated,” and thus are completely compatible with a robust Second Amendment. These proposals include bans on assault weapons, increased waiting periods for purchases, and more comprehensive and widespread background checks. These are the definition of reasonable gun regulations—the types of protective measures that the Constitution not only enabled but called for the government to enact.
In fact, Scalia said explicitly in his decision that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on 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.”
Indeed, the supreme court recently refused to even consider a case in which a plaintiff asked the court to overturn a ten-day waiting period; his argument was that such an inconvenience was a violation of the Second Amendment. It seemed obvious to the court that such sensible gun legislation does not violate the second amendment.
This pro-regulatory reading of the Constitution is historically and textually accurate, but it is far from the NRA’s reading. In fact, the NRA has misleadingly described these proposals as unconstitutional. Moreover, NRA CEO Wayne LaPierre goes so far as to claim that a conspiracy has long been underway, orchestrated by the Obama administration, George Soros and the United Nations, to seize every gun in America.
But if LaPierre believes that all those supporting gun regulation are part of this deep state conspiracy, then the heavily conservative supreme court must be included as well. They’ve clearly upheld the kind of legislation being considered right now in Congress, but no one could plausibly claim that Republican appointed Justice Alito or Chief Justice Roberts is out to confiscate Americans’ firearms.
Fortunately, the NRA narrative is being challenged. The brave students of Stoneman Douglas are the fiercest opponents the NRA has seen in some time. In defending sensible gun regulation, they, not their opportunistic opponents, are the ones truly standing up for the constitution and the second amendment.
- Corey Brettschneider is a political science professor at Brown and a visiting professor at Fordham Law School. He is also the author of When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality