The Second Amendment is no bar to gun regulation

The mass shooting in Uvalde, Texas has placed gun violence in the news for the third time in a month. It has also placed gun regulation and debates over the Second Amendment on the political agenda, with some such as Senator Ted Cruz declaring that the Constitution is bar to limits on the right to bear arms.

The Constitution is not an impediment to reasonable gun regulation. The real problems are threefold: The Supreme Court, a lack of political will, and devising policies that will work to address gun violence given the reality of there nearly four hundred legally owned guns in the United States.

Continuing controversies included the following: Does the text of the amendment protect an individual right to keep and bear arms, or is that a collective right maintained within the context of a militia? Until District of Columbia v. Heller (554 U.S. 570) in 2008, the Court had not explicitly addressed this question. The debate between Justices Scalia and Stevens highlights the contrasting ways the Court uses test, history, and precedent in seeking to understand how the language of the Bill of Rights applies in a society centuries removed from that of the Framers.

In Heller, the Court stated only that the Second Amendment protects an individual right. To reach that conclusion the Court engaged in both a tortured textual analysis of the Amendment and a weak amateurish or law office reading of the history of the text.

But in reaching that conclusion the Justice Scalia and the Court did not specify what that right is actually protecting, and he went out of his way to assert that the ruling would not invalidate many traditional restrictions on gun ownership. Moreover, the ruling affects the District of Columbia and the federal government only. The Heller decision did not incorporate the Second Amendment to apply to the states, but in 2010 in Chicago v. McDonald the Court did that, meaning that both the federal and state governments were limited by this Amendment.

Heller resolved the individual-collective right issue. The decision may or may not be correct, but unless a future Court reverses itself or the Constitution is amended, the current reading of the Second Amendment is the law of the land.

Does the Second Amendment grant an absolute right to bear arms? The answer is no. No Amendments are absolute. The First Amendment rights to free speech or assembly are not absolute, and there is no reason to think the Second is either. In Heller, the Court seemed to identify the core right of the Second Amendment is to possess guns for self-defense and maybe hunting. But such rights do not mean an unlimited right to possess and use any kind of gun or weapon, and it also does not mean that such rights apply to all equally.

There are three issues that really limit the ability to regulate guns to promote public safety.

There is a lack of political will. Specifically, the NRA is a potent lobbying and political force that worked hard for years to secure the Heller and McDonald decisions. They took a page out of the NAACP which did a remarkable job in the twentieth century to overturn segregation. The NRA mobilizes voters. Large percentages of the population support gun rights, as does the Republican Party. Gun advocates vote, those who wish to limit the regulation of guns are not as mobilized by the issue as the latter. This is simple politics.

The current Supreme Court is among the most conservative in history. It supports gun rights and it might invalidate a current New York State law that regulates guns. That law would limit the ability to carry a loaded gun in public. The Court heard oral arguments in November 2021 and it looked like it would strike the law down. How the Court will be affected by the Uvalde is a good question.

Most importantly, the problem is what do advocates of gun regulation want to do and what can realistically work to reduce gun violence?

But what are we trying to accomplish with the regulation of guns? Serious policy debate is marred in faulty logic and bad argument.

To start, the phrase “gun control” has simply become a politically charged phrase used by different political parties to mobilize their voters and base.

Second, the phrase or argument “guns don’t kill people, people kill people” is equally misguided. Guns dramatically facilitate violence. One does not see mass killings take place with sticks and knives, and most robberies and other violent crimes involve guns and not other weapons.

Our focus on guns is misguided. What are we trying to prevent, or as I ask my students, what is the problem we are trying to prevent?

Some argue that the problem is not guns but mental illness and that the solution to gun violence is to prevent the mentally ill from getting guns. This assumes all mentally ill people are violent and those who are sane are not. Our prisons are full of lots of people who use guns and commit crimes and the law has deemed them sane. There are millions of people in America with mental illness problems and few are violent.. Despite the belief that mental illness is the underlying cause of mass shootings and gun violence, there is little evidence, according to an American Journal of Public Health Study, among others, that those with mental health problems are more likely to commit violence with a gun than those lacking such a diagnosis. Finally, more than 250,000 guns per year, according to The Trace, are stolen from the proverbial law-abiding owner because they have not been properly secured, and are used in crimes.

The problem thus is not the Second Amendment. It is the political will and desire to address violence in America with the development of effective public policies and not political slogans.

Counterpunch