Seventeen days after the massacre in Las Vegas, we are repeating an all too familiar cycle of horror and despair over whether anything can actually change: anguish, a push for action, political failure, and a move on to other issues.
In this bleak moment, some gun safety supporters have offered a startling new stance. They urge a repeal of the Second Amendment itself. Anything less, they argue, is a placebo.
It’s an understandable impulse. The use of the amendment as a talisman to protect against sensible gun laws is one of the more infuriatingly predictable parts of our national culture. But this new call is woefully misguided. It accepts Wayne LaPierre’s vision of the Second Amendment and what it allows. But the Bill of Rights isn’t the obstacle to sane gun laws. A broken political system is.
On the right, there’s New York Times columnist Bret Stephens calling for repeal in a column addressed to fellow conservatives: “Expansive interpretations of the right to bear arms will be the law of the land — until the ‘right’ itself ceases to be.”
On the left, Michael Moore proposed a 28th Amendment that limited gun ownership to the state National Guard and “the strictly regulated right of the people to keep and bear a limited number of non-automatic Arms for sport and hunting, with respect to the primary right of all people to be free from gun violence.” He noted that the original “right to keep and bear arms” was written “before bullets and revolvers were even invented.”
All this echoes a call three years ago by none other than retired Supreme Court Justice John Paul Stevens, who wrote the dissent in District of Columbia v. Heller. He urged that the amendment be rewritten so it protects gun rights for people serving “in the militia.”
These proposals provoke, of course. There’s power in the willingness to talk about constitutional change. But I believe they misread the way we got here – and the way out.
Start by remembering that the current interpretation of the Second Amendment – that it guarantees an individual right to gun ownership – is less than a decade old. The Court did not proclaim that the Constitution guarantees an individual right until 2008, in Heller. The ruling was five to four.
Previously, the conservative chief justice, Warren Burger, reflected the conventional wisdom when he said that the idea the Second Amendment guaranteed an unfettered individual right to own guns was a “fraud on the American public.”
At the time of the Revolution and the Constitution, all white American men were required by law to serve in their state militia – and to own a military weapon. Opponents of the Constitution feared that the new powerful central government would crush those state armies. The amendment protected an individual right – to enable Americans to fulfill their duty to serve.
As I showed in my book The Second Amendment, there is not a single word about an individual’s right to a gun for self-defense or recreation in James Madison’s notes from the Constitutional Convention. Nor was it mentioned, with a few scattered exceptions, in the records of the ratification debates in the states. Nor did the U.S. House of Representatives discuss the topic as it marked up the Bill of Rights. In fact, Madison’s original proposal included a conscientious objector provision for those whose “religious scruples” prevented them from militia service. To the founders, our questions about the amendment would make no sense, just as their answers to us make no sense.
Over the years gun ownership grew more widespread, but always accompanied by regulation for public safety. Rights and responsibility went together.
Gun advocates like to quote, out of context, the Founders. Here’s one they don’t like to mention: In 1825, the governing board of the University of Virginia voted that “No student, within the precinct of the university, shall keep or use weapons or arms of any kind.” Who were these gun grabbers? Thomas Jefferson and James Madison, to name two. They apparently did not think the Second Amendment required a “carry everywhere” approach.
So why do so many Americans believe the Constitution protects even the most outlandish gun practices? Thank a skilled 30-year campaign by the National Rifle Association and other gun rights advocates. The NRA once backed gun control. In the 1970s, it lurched to the right and rebranded itself a crusade devoted to the Second Amendment. Visitors to its Virginia headquarters will see an edited version of the amendment on its wall, with the reference to the “well regulated militia” simply omitted.
So people who want a big change in how the Second Amendment is regarded don’t have to undo a century of precedent. They have to push the argument back to where it was, say, in 2007.
But there’s another reason a rewrite or a deletion of the Amendment isn’t needed. Courts likely would uphold the kinds of changes being discussed after Las Vegas. Surely it would allow a ban on “bumper stocks,” which effectively convert a semiautomatic weapon into an automatic weapon, able to kill many more people more quickly. It would also likely uphold limits on how large an arsenal an individual could amass. (That’s a closer call, but already there are limits on how many guns someone can buy at a single time.)
How could this be? Heller had big exceptions. When weapons are unusually dangerous, Justice Antonin Scalia wrote, they could be banned. Machine guns, for example.
Since then lower courts have overwhelmingly upheld existing gun laws. Yes, they ruled, there is an individual right to bear arms – and also a right for society to protect itself. The justices have declined to take any major Second Amendment cases, seemingly content to let the lower court consensus take hold.
And, of course, it is notoriously hard to actually pass a constitutional amendment. Small states would have an outsized role in preventing one from being approved. A frontal assault on the Second Amendment would drive off many more than it would mobilize. Nobody has ever repealed one of the ten items in the Bill of Rights.
The Constitution is not a bar to sane gun laws. Neither is public opinion. After Newtown, the public backed strengthened background checks by 90 percent. The problem was not the voters but the politicians. A Senate filibuster doomed the bipartisan bill introduced by Joe Manchin (D-WV) and Pat Toomey (R-PA), even though the measure won a majority. The NRA’s power comes not from court rulings but from the intensity of its members. Thanks to gerrymandered districts, lawmakers have much more to fear from a frenzied “faction” (as James Madison would have called it) than the general public.
All this might change. As Bret Stephens noted, the Court’s personnel has begun to change. Neil
Scalia often quipped, “I am an originalist. But I am not a nut.” His replacement Neil Gorsuch seems to have decided to hang out on the Court’s far right flank. Maybe he and other Trump nominees would lead a drive to revisit gun rights. But they haven’t yet.
Gun advocates have wrapped themselves in the Constitution. They no longer talk about guns or hunting – they orate about the sacred Second Amendment, about freedom, about tyranny. Trying to rip up the document merely plays into their hands.
Michael Waldman is president of the Brennan Center for Justice at NYU School of Law. He is the author, most recently, of The Fight to Vote.