Gun Control and Constitutional Change

Jared Mayer, JHU:

The scourge of tragic gun violence has stricken the United States once again. On November 27th, a gunman assaulted the Planned Parenthood facility in Colorado Springs, Colorado, killing two civilians and one law enforcement officer. Not one week later, two gunmen attacked an office party in the Inland Regional Center in San Bernardino, California, killing 12 civilians and injuring 21 others. In his statement on the San Bernardino shooting, President Obama commented, “we have a pattern now of mass shootings in this country that has no parallel anywhere else in the world.”

He is certainly not wrong. After all, many news outlets have estimated that the United States has been struck by over 355 mass shootings so far in 2015, causing 462 deaths. Naturally, these events, their frequency, and the shocking number of casualties that have been associated with them have re-invited the ebbing and flowing gun control debate to the forefront of the national discourse.

Some have argued that the sheer number of mass shootings have caused even the most devoted gun-rights apologists to rethink their positions. One article even claimed that the National Rifle Association is “getting its ass kicked.” They may be right to some degree, especially when we consider the realm of state gun laws. Recently, 15 out of 16 states have rejected NRA-backed bills that allow guns on college campuses. Washington State recently passed a state initiative, I-594, which enacted a wide array of gun control measures. Oregon also passed a background check bill that was opposed by the NRA. Colorado, Iowa, and North Carolina all rejected bills that would weaken their background check systems. Similar efforts made by the NRA have also failed in Utah, West Virginia, Montana, and Missouri.

Yet any serious change that is proposed on the federal level has been driven to a grinding halt. Just last Friday, the Senate voted against gun control measures such as preventing those who are on the FBI’s terrorism watch list from purchasing guns and creating a universal background check system for all gun purchases. Any hope for serious, federal consideration of gun control continues to be dashed time and time again.

Most notable here is the rhetoric used by members of Congress to defend their opposition to gun control. Much of it centers on the inviolability of the Second Amendment. Indeed, as the Supreme Court has said in its landmark decision District of Columbia v. Heller, “The Second Amendment protects an individual right to possess a firearm…for traditionally lawful purposes, such as self-defense within the home.” Yet Justice Antonin Scalia, who wrote for the majority in Heller, conceded, “Like most rights, the right secured by the Second Amendment is not unlimited.” Furthermore, Justice Scalia limited his opinion in allowing legislatures to enact “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.” Those who invoke the Second Amendment and Heller often ignore this passage; this is not even to mention the contentiousness of the opinion, to which Justice John Paul Stevens harshly dissented.

What is problematic here is the language of the amendment. The Second Amendment reads: “A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Of course, gun control advocates will harp on the first part of the amendment – what Justice Scalia called the “prefatory clause” – while gun rights advocates will focus on the latter part, otherwise known as the “operative clause.” Damning, however, is the fact that however you wish to read the amendment, it reads like a bad law school question, filled with grammatical and thematic oddities. Here, ambiguity feeds into insecurity. With Heller having been decided by a narrow five to four decision, the individual right to keep and bear arms seems tenuous. The intuition for gun rights activists, then, is to batten down the hatches and defend the Second Amendment to the last breath; after all, it is only one vote away from being constitutionally ignored.

Of course, some will suggest that we scrap the Second Amendment entirely with nothing left in its place. Whatever one may think as to the desirability of guns, the reality is such that the right to keep and bear arms is going nowhere anytime soon. Americans are closely divided over whether gun control laws violate the Second Amendment. That is not to mention the overwhelming support Americans have for the Second Amendment itself. Additionally, according to a Gallup poll, 43% of Americans have at least one firearm on their property. This is not to even mention the incredible difficulty in amending the constitution; it requires two thirds of both houses of congress and three quarters of the state legislatures to accede to the proposed amendment. One must politically sober whatever hopes one has of wishing the Second Amendment away.

Perhaps the solution to the United States’ complex relationship with the Second Amendment – its text, history, and political ramifications – is to repeal the Second Amendment and replace it with a new, different constitutional provision. Without more, this suggestion merely directs us to a new set of questions: What will this constitutional provision look like? Wouldn’t the debate over this new constitutional provision simply be an aggrandizement of the current gun control debates in the United States? And what about this provision will ensure its passage through the crucible of amendment ratification?

This new provision should not necessarily settle all of these questions and the future of gun control. But what it should do is facilitate those conversations by providing both sides with genuine, constitutional authority for their claims. We have, in fact, already seen examples of this on the state level. For example, Article I, § 6 of the Utah constitution of 1895 states, “The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms.” Notice that the provision contains a crisp, clear protection of the individual right to keep and bear arms for self-defense. Also notice the provision’s clarity in enshrining the legislature’s right to regulate the proper use of arms. What’s clear is that both sides of the gun control debate have strong grounding in the constitutional text. With that, gun control advocates can clearly point to the text that allows them to regulate guns, while gun rights advocates can point to the text so as to ensure that those gun control efforts do not reach too far. With this, a healthier debate over gun control can ensue – one that provides the necessary security and legitimacy for both gun control and gun rights advocates presenting their claims in the debate.

This nation’s debate over gun control is not another surface policy preference or issue. It is constitution deep; its origins lie in the document that shapes this nation’s politics. Nothing short of constitutional change, then, can provide the proper remedy.

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