It is difficult to overestimate the rhetorical power of the words ‘second amendment’ in the current political climate. Despite some horrific mass shootings, a near-rebellion, and the increasing visibility of anti-government militias — plus the undeniable power of the National Rifle Association — those two words are still used. to cut off the conversation about gun control and treat any regulation of gun access as a breach of the protections afforded by the amendment.
In the wake of the horrific mass shootings in Buffalo, New York, Uvalde, Texas and Tulsa, Oklahoma, calls for federal gun control legislation have been met again with defenses from gun owners and advocacy groups such as the National Rifle Association that supports the Second Amendment, the constitutional right to use guns. to wear is inviolable.
The most ardent firearms advocates, including Texas Sen. Ted Cruz, NRA CEO Wayne LaPierre, and attendees at the NRA’s annual convention held in Houston, Texas, just days after a man with an AR-15-style rifle killed 19 children and two teachers at Robb Elementary School — have mass shootings have been blamed for everything from insufficient police presence in schools to mental illness, to the perceived lack of Christian influence in everyday American life.
“If you allow someone to defend themselves the way our Second Amendment was meant to… you’re going to stop a lot of this,” one conference-goer told herself as Anna alone, told the Texas Tribune. Another, Lyndon Boff, blamed the education system for mass shootings, saying: “…the first thing you have is a president who says ‘we have to do something about it, because it’s guns that killed the people’. ‘ No. It’s their programs that teach kids in school that our country is a mess.” LaPierre, for his part, said limiting the “fundamental human right” of individuals to protect themselves and their property to prevent mass shootings “is not the answer; it never was” in a speech to Congress.
“The rhetorical power of the Second Amendment should not be underestimated,” Eric Ruben, a professor at SMU’s Dedman School of Law and fellow at the Brennan Center for Justice, told Vox. That power, he said, was well understood by the late Supreme Court Justice John Paul Stevens, who wrote in a 2018 New York Times op-ed about the 2008 Supreme Court case. District of Columbia v. Heller“That decision — which I am still convinced was wrong and certainly debatable — provided the NRA with a propaganda weapon of immense power.”
In the op-ed, Stevens argued for the undoing of the Second Amendment, which, he wrote, “would be simple and would do more to the NRA’s ability to obstruct legislative debate and block constructive gun control legislation than any other option available. ” Democratic members of Congress have called for such a debate in the wake of recent mass shootings and plan to collect testimony from victims and families at an upcoming hearing. But efforts to enact gun control legislation at the federal level are likely to meet with roadblocks this time around, as they have done after mass shootings over the past year and a half.
District of Columbia v. Heller and Popular Constitutionalism
As Ruben told Vox, and as Stevens noted in his 2018 op-ed, heller was the case that refocused the understanding of the Second Amendment in legal terms, to expressly give the individual the power to possess firearms for their own protection. Previous lawsuits, such as in 1939 United States v. Miller, looked at the first part of the Second Amendment, which puts gun ownership in the context of a well-regulated militia. That case allowed Congress to pass legislation against sawed-off shotguns since, as Stevens wrote, “that weapon had no reasonable relationship with the maintenance or efficiency of a ‘well-regulated militia.'”
But, as Ruben told Vox, by then heller had been decided, many Americans agreed that the Second Amendment granted individuals the right to own handguns for their own self-defense — before the ruling had even come out. Ruben traced that shift in understanding to the shift in reasons why people owned firearms — as the people’s interest in hunting and sports waned over the decades, people increasingly bought firearms to protect against crime in their homes.
“Often shifting public sentiment about the meaning of a particular constitutional provision precedes changed legal views. In that way, Heller can be understood as popular constitutionalism.”
Popular constitutionalism – essentially the interpretation of law in accordance with contemporary values and ideas, partly explains Heller’s decision, as Yale Law School professor and scholar Reva Siegel wrote in the Harvard Law Review. But the Heller decision is interesting, because the argument for a judgment toward popular constitutionalism also hinges on the modern interpretation of the Second Amendment as the original meaning of the amendment—in other words, many Second Amendment proponents believe that their modern interpretation is actually the original intention of the framers.
“These practices of democratic constitutionalism enable mobilized citizens to challenge and shape popular notions about the original meaning of the constitution, thus empowering the courts to enforce the nation’s fundamental obligations in new ways. Siegel wrote, addressing the activism surrounding the gun rights movement during the 20th century, and how such activism shaped the American understanding of the original meaning of the Second Amendment.
It is an interesting challenge to the question of whether the public and the Court regard the Constitution as a living document, to be interpreted on the basis of contemporary values and needs, or whether it is something to be judged solely on its legal content, without the imposition of contemporary politics. According to Siegel, the heller decision blurs that line.
Gun control can work at state level
“The second amendment is really important, but that alone isn’t the bogeyman,” Ruben told Vox. Although it is true that heller and, in particular McDonald v. Chicago† a 2010 case in which Otis McDonald and others challenged the City of Chicago’s 1982 gun restrictions. The Court ruled that an individual’s right to keep and bear arms for self-defense is supported by the due process clause of the Fourteenth Amendment – and thus includes the heller decision against the states.
The combination of the decisions in heller and McDonald’s opened up the potential for gun control law challenges, while culture wars and gun rights activism turned the mere expression into a poisonous, conversation-ending sound bite, gun control legislation is still possible at the state level, Rubin said.
“The vast majority of states have their own constitutions, and their own rights to have and bear arms, and many of those constitutional rights of the state to have and bear arms have already been interpreted, or were explicit, to be a private right to bear arms. have a gun for self-defense,” he told Vox. What’s more, the heller decision does not infringe on states’ rights to impose restrictions and gun control regulations on many weapons, including weapons such as the M16, of which the AR-15 is essentially the mold for sale to civilians.
That means, Ruben said, in about 1,400 challenges to arms restrictions in the years after the… heller By his calculations, 90 percent of those cases failed to overturn gun control rules.
Meaningful gun control laws have even been passed in the wake of recent mass shootings. After 17 people were killed in a mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, in 2018, then-Governor Rick Scott, a Republican, passed a package of gun control laws that included a measure to raise the minimum age for buying guns. a rifle or shotgun from 18 to 21.
The New York state legislature approved a similar measure after an 18-year-old gunman with an AR-15-style rifle entered a Tops supermarket in Buffalo, New York in May and killed 10 people, all black, in a racist act. motivated crime. The new laws in New York, among other things, require people to pass background checks and take a gun safety course in order to be licensed to own a semiautomatic rifle, the New York Times reports.
Sure, these are step-by-step measures taken only after irreparable harm to families and communities, but it’s important to note the places and ways in which change is possible – and to understand that the Second Amendment, even as interpreted in helleractually be able to back up these necessary changes, at least for now.
That’s not to say the conservative majority in the Supreme Court won’t give a more extreme interpretation of the Second Amendment in the near future. New York State Rifle & Pistol Association v Bruen† a case challenging a New York law that requires people who wish to carry a firearm in public to obtain a license, be 21 years of age with “good moral character” and no criminal record — and also demonstrate the need to keep the firearm in publicly — could open up some gun restrictions already on state books to legal challenge, depending on how it’s decided, Darrell Miller, a Second Amendment expert at Duke Law School, said in an interview with Andrew Cohen of the Brennan Center.
“The judges at the pleadings seemed genuinely concerned that a broad ruling on public transit would embroil them in all sorts of details about where guns can be banned — campuses, subways, Times Square on New Year’s Eve, etc,” he said, explaining how complicated it would be. are for federal district court judges to oversee and decide where guns should be banned in their jurisdiction.
But, Miller said, the power of conservative politics cannot be ruled out in this case. That said, there is a conservative supermajority in the Court that is clearly ready to flex its muscles on issues conservatives have long cared about — from abortion restrictions, to free exercise, to gun rights — so I can make a broad and a widely disruptive statement. that would not only upset New York’s regulations, but would also question the constitutionality of nearly every gun regulation, in every state, at every level of government.”