In the New York Times this morning, Bret Stephens called for a repeal of the Second Amendment. Setting aside the fact that this is about as likely to occur as Donald Trump winning the Nobel Prize in Chemistry, is this a goal worth pursuing? I fear that it distracts from an understanding of how we got to our current situation—and what can realistically be done about it.
Despite claims of originalists, the Second Amendment has been radically remade by the courts in the past decade, just as much as has the law of marriage. What exactly the Amendment means has been the subject of much scholarly debate and textual analysis, chiefly around the meaning of the words “A well-regulated militia being necessary to the security of a free State.” This phrase precedes the actual restriction on regulation, but what does it mean? Does it modify the restriction, or is it just flowery language to justify it? Does it mean that gun ownership should somehow be tied to militia membership? Or that the right is a collective right of the people but not individual? Individuals have always enjoyed the right to use guns for self-defense, but does this mean no limitations are allowed?
Whatever the founders meant, the Supreme Court had never struck down a local gun restriction as being unreasonable until the 2008 case of Heller v. D.C., which held that the right was individual and unconnected to either militia service or self-defense. In 2010, the Court extended this interpretation of the Second Amendment to apply to the states in McDonald v. City of Chicago. Before that, we enjoyed a long history of reasonable, safety-oriented regulations of firearms, and yet somehow remained free of totalitarianism or foreign invasion.
The cases mentioned above changed the law by treating gun ownership as an individual right. Why did they do this? In part because they reflected a change in popular understandings of what the Second Amendment requires. The National Rifle Association has been aggressively fighting even reasonable gun restrictions for decades, a process that reached its nadir when the Republican Senate several times blocked proposed restrictions on gun ownership by people on the active terrorist watch list. The NRA fear is that if someone were to be mistakenly put onto the watch list, it might take some time for them to prove that they did not belong, during which they would be unable to purchase new handguns. That’s right: we’d rather have suspected terrorists buying guns freely than risk a delay in a mistakenly identified person purchasing guns. This may seem a small price to pay for freedom, as they say, but it was too much for the NRA and its supplicants in Congress.
No right is truly absolute in any constitutional system. The First Amendment right to free speech does not mean, as Justice Holmes famously put it, that you can yell fire in a crowded theatre. Nor does it over-ride the common law of libel and defamation—you can’t willfully publish lies about someone without potentially paying damages for their loss of reputation. Yet the current Republican Party has essentially said that we should treat any reasonable restriction as a severe danger to our liberty.
It is important to remember that even reasonable restrictions would not have stopped Stephen Paddock. But they would have saved some of the tens of thousands of people who have died in handgun violence in recent years. That should be good enough to begin the discussion.
How then, might we move toward better regulation? We need to first recognize that our judicially produced regulations are not the product of some original understanding: they are the result of judicial activism by conservatives. Both right and left have celebrated judicially created rights in recent years. Judges truly committed to the passive virtues would have let marriage and guns be regulated at the state level. But that is not what they have done.
The Second Amendment should be re-interpreted to protect self-defense and state-sponsored militias, not to allow weapons that are more lethal than they need to be. Such an approach seems consistent with the language and original understanding of the Bill of Rights, and doesn’t require repeal of one of its components.
Judges are responsive to broader trends in the politics. At the end of the day, social movements have remade the Constitution in many areas, and the Second Amendment is no exception. I’ve even considered joining the NRA to elect a more reasonable slate of board members for that organization. But changing the NRA might be as a fantastic as, say, repealing the Second Amendment.