The Constitution Gives Gun Owners Greater Rights Than Women

For decades, women have been fighting for an equal rights amendment. Gun owners, mostly men, have had the Second Amendment for centuries.
Gun rights are enshrined in the Second Amendment, but women are still fighting for an equal rights amendment.
Gun rights are enshrined in the Second Amendment, but women are still fighting for an equal rights amendment.
Harald Sund via Getty Images

Here’s a disturbing fact to consider in 2018, the year women supposedly began to topple the patriarchy: Gun owners in the United States, a majority of whom are men, have better constitutional rights than women.

Gun owners have the Second Amendment, in place since the 18th century. The U.S. is one of only three countries that offer constitutional protection to gun owners.

Women, meanwhile, have been fighting for an equal rights amendment for decades. That’s because the Constitution does not actually grant women equal rights under the law, setting the country apart from 131 other nations that explicitly guarantee gender equality in their constitutions.

This failing means that when it comes to a raft of issues ― including equal pay, sexual harassment and domestic violence ― women lose.

“On the moral plane, there’s a sense in which the Constitution sets forth our human rights and to not have the human rights of women in there is a gross omission,” said Jessica Neuwirth, president of the ERA Coalition, a group founded in 2014 that’s dedicated to amending the Constitution. “It just makes no sense.”

This injustice burns all the more now, in the wake of the Parkland, Florida, shooting, in which a 19-year-old man used an AR-15 to murder 17 people, including 14 high school students. The shooter had a legal right to his guns. He apparently had an arsenal. And because he had no criminal record, the FBI and police did not have any legal standing to take them away. In 2014, police were similarly hamstrung in the case of a 22-year-old man who went on to kill six and injure 13 in a rampage in Isla Vista, California.

“On the moral plane, there’s a sense in which the Constitution sets forth our human rights and to not have the human rights of women in there is a gross omission.”

- Jessica Neuwirth, president of the ERA Coalition

Contrast those cases with what happened to Jessica Gonzales, a Colorado mother whose three children, just 7, 9 and 10, were abducted and shot to death by her husband. Those children should still be alive today: Gonzales had obtained a protective order against her husband, who had been violent before. The police refused to enforce it, declining to get involved in a “private” matter between a man and his wife.

Gonzales sued the police, arguing she had a right to protection. Her case went all the way to the Supreme Court. But she lost in 2005. The court ruled that Gonzales, now known as Jessica Lenahan, had no constitutional right to help from law enforcement.

An equal rights amendment, which would force police to take the rights of women as seriously as they apparently take the rights of potential mass murderers, could have theoretically changed the outcome of that case.

Indeed, Gonzales has brought her case to an international court, which has charged the U.S. government with violating her human rights.

Of course, the Second Amendment applies to all Americans. But is there really any doubt that guns are unabashedly, toxically masculine? Recent efforts by the National Rifle Association and gun manufacturers to market weapons to women haven’t done much to change this. Thirty-nine percent of men said they own a gun, in a recent Pew survey, compared with 22 percent of women. Of course, Second Amendment rights have traditionally been a liberty fully enjoyed mostly by white men ― and the stats reflect this: 48 percent of those guys own a gun.

If a boy grows up in a house with guns, he’s far more likely to participate in gun-related activities, according to Pew. After all, from the time boys are able to walk, they are lured into loving guns ― they get Army men to play with, fashion pistols out of sticks, watch “cool men” shoot people in video games and on the big screen. Gun companies run advertisements, like this one from Bushmaster, that equate gun ownership with masculinity.

To grown men, guns are marketed as the ultimate safety device, allowing them to protect themselves and, this is crucial, their families ― wives and children ― from danger.

But we know the truth: Women are in greater danger when their partner has a gun. The risk of a woman being murdered in a domestic violence situation increases 500 percent when there’s a gun in the house, according to one study.

Women would be better protected with the help of the law, not a device meant to kill.

There was a big and fairly popular attempt to pass a measure appropriately called the Equal Rights Amendment for women back in the 1970s. The gist of the ERA is simple: “Equality under the law should not be denied or abridged by the United States or by any state because of sex.” But in 1982, the amendment reached the deadline imposed on it by Congress. It fell just three states short of the 38 needed to ratify it to amend the Constitution.

While the ERA was initially popular, opponents of the amendment gained traction over the years its ratification was in play. They used arguments that now seem antiquated, such as that the ERA would mean women would go into combat (now they do), that it would make gay marriage legal (check) or that somehow women wouldn’t get a good deal out of marriage anymore (because of alimony).

Others tried to argue we don’t need explicit equal rights under the Constitution because the law already provides women with equality. Tell that to Jessica Gonzales. Or to the female workers at Walmart who famously lost their fight for equal pay at the Supreme Court in 2011.

In Walmart v. Dukes, the high court ruled that the women did not have standing to sue because they didn’t have enough in common. The opinion was written by now-deceased Justice Antonin Scalia who had said earlier that year in an interview that women aren’t guaranteed protection from sex discrimination by the Constitution.

Indeed, even as so many more women are now speaking up in the Me Too era about sexual harassment and discrimination, the sad truth is Scalia wasn’t wrong: The path to justice in the court system for victims of harassment and discrimination is far from guaranteed.

“This amendment is the only legal initiative expansive enough to support what the Me Too revelations have shown is needed.”

- Catharine MacKinnon, of the ERA Coalition advisory council

The legal framework that allows women to go after harassers in court is a patchwork. The federal anti-discrimination law, born of the civil rights era in the 1960s, does offer protection for women ― but there are loopholes. If harassment takes place outside of work or school, there’s no avenue to pursue justice. And even if it happens at work or school, there are snags: Small businesses can’t be sued under the law; private schools aren’t covered.

Sure, there are states that do better, with stronger protections for women in place, just as some put more curbs on gun rights. But that’s no substitute for the force of federal law.

The ERA would arguably close those loopholes. (The ERA, if it passed, would be the first amendment since the 27th passed in 1992, setting stricter rules around pay for legislators.)

Women haven’t given up fighting for that protection: The ERA has been introduced in the House every year since 1982, most recently by Rep. Carolyn Maloney (D-N.Y.).

Last year the Nevada Legislature ― 35 years too late ― endorsed the ERA.

Giving women equal rights is a popular and not even highly partisan concept. According to the ERA’s own polling, 80 percent of Americans think women already have equal rights under the Constitution. And 94 percent support the ERA.

“This amendment is the only legal initiative expansive enough to support what the Me Too revelations have shown is needed,” said Catharine MacKinnon, the legal scholar who first conceptualized the notion of sexual harassment in the courts and who sits on the advisory council of the current ERA Coalition.

“It’s the only thing big enough to capture what’s happening in this moment.”

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