Any time the issue of gun safety is brought up in the United States, politicians mention the Second Amendment. Republicans tend to use the Second Amendment as a rationale for not taking any steps to increase gun safety. Democrats tend to mention their respect for the Second Amendment while stating the common-sense precautions they would like to enact. One of the biggest goals of gun safety advocates, especially since the horrific massacre at Stoneman Douglas High School in Parkland, Florida, is a nationwide ban on assault rifles. We should be having this conversation without discussing the Second Amendment. Why? Assault rifles are not protected by the Second Amendment.
“What?” you say. “How could that be?” The current interpretation of the Second Amendment, both by the media (regardless of partisanship lean) and the Supreme Court (the people who really matter), is that the Second Amendment protects individuals’ rights to own guns for self-defense purposes. This is broadly accepted despite the fact that this framing of the Second Amendment is contrary to centuries of accepted legal doctrine. The Second Amendment was signed in 1791. The first time the Supreme Court recognized that the Second Amendment applies to individuals for self-defense purposes was in 2008, less than 10 year ago, in Heller v. District of Columbia.
What changed? A right-wing movement and right-wing judges. After a decades-long effort to sway public opinion, elected officials, and groom right-wing judges, the NRA, with a massive assist from the Federalist Society and other right-wing organizations, finally got their desired result.
In Heller, the Supreme Court, by a 5-4 majority, held that the Second Amendment protects an individual’s right to own a gun for self defense purposes and invalidated some provisions of a Washington, DC law that made it illegal to possess handguns in the city. The opinion is not good for a number of reasons: it misreads relevant precedent (and has no precedent on which to rely), its textual argument (the supposed basis for the holding) is twisted–it begins with the end of the text it attempts to interpret before moving on to the beginning, and it leads to a shitty policy outcome.*
But here’s the thing: Heller is currently the law of the land. Whether, like me and plenty of others, you think it’s a bad decision or it’s the masterpiece of a legal genius, courts across the country are bound to follow it. Even Heller, however, does not prevent the federal government or states from enacting bans on assault rifles.
Some gun fanatics claim that any law that would outlaw or make it more difficult to obtains guns, ammunition, or accessories is a violation of the Second Amendment. These arguments, often by people claiming to love and want to protect the Constitution, overlook our legal system and how it’s the courts’ job to interpret the Constitution.
Scalia’s majority opinion in Heller makes it crystal clear that the right to “keep and bear arms,” is not absolute. “Like most rights, the right secured by the Second Amendment is not unlimited.” 128 S. Ct. at 2816. “[N]othing 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.” Id. at 2816-17. The Court also recognized “another important limitation on the right to keep and carry arms,” that only guns in common use at the time are covered by the Second Amendment–dangerous and unusual weapons are not. Id. at 2817.
Heller’s explicit limitations on the scope of the Second Amendment mean that there is no constitutional impediment to banning assault rifles.
Many lower courts (district courts and courts of appeals) have upheld bans on assault rifles. For example, in Kolbe v. Hogan, the Fourth Circuit, en banc, upheld Maryland’s post-Sandy Hook ban on assault weapons and high-capacity magazines. The majority opinion, which had the support of ten judges versus four dissenters, stated that “[b]ecause the banned assault weapons and large-capacity magazines are clearly most useful in military service, we are compelled by Heller to recognize that those weapons and magazines are not constitutionally protected.” 849 F.3d at 138 (emphasis added). Like in the other cases upholding bans on assault rifles, the Supreme Court declined to review the case. Supreme Court justices tend not to be shy. If they believed that the Second Amendment was being violated, they would say so. But they don’t.
Because assault rifles are not protected by the Constitution, the only impediments to passing bans on assault rifles, which will save lives, is public opinion and political power. Public opinion is increasingly in favor of banning assault weapons. Federally and in many states, political power prevents any such action from happening. That means we need to translate public opinion into political power.
If everyone who supports gun safety votes for politicians who support gun safety laws, we’ll be able to effect the change we want to see in the world. There are plenty of organizations doing great work on this front, including Everytown, Moms Demand Action, and March For Our Lives. The next time there’s a gun massacre we’ll be forced once again to grapple with the fact that the Constitution isn’t causing our devastatingly high gun violence rates. It’s our politics and politicians.
*If you don’t think Scalia was outcome-oriented, read United States v. Lopez (a 1995 case in which Scalia voted with the majority that Congress could not impose gun-free zones around schools because the Commerce Clause of the Constitution did not grant it that power) and Gonzales v. Raich (a 2005 case in which Scalia voted with the majority that Congress could make possession of marijuana illegal, including when applied to a person who grew and consumed their own marijuana without selling it to another person, pursuant to the Commerce Clause). And then, if you really want to feel nauseated, read United States v. Morrison (a 2000 case in which Scalia voted with the majority to invalidate provisions of the Violence Against Women Act because the Commerce Clause did not provide Congress power to police gender violence, despite mountains of Congressional evidence of the relationship between gender-based violence and commerce) and Bush v. Gore (perhaps the worst Supreme Court opinion of this decade: the 5-4, unsigned opinion joined by Scalia holding that a Florida court decision on Florida election law was a violation of the Constitution’s Equal Protection Clause because, and really there isn’t any other reason, every justice appointed by a Republican president wanted George W. Bush to be president).