Why There Is No Constitutional Argument Against Gun Control
An analysis of the 2nd Amendment and the Supreme Court decision gun rights advocates misrepresent to argue against gun control
It doesn’t matter what side you’re on. If you’ve been touched by gun violence or not, own a gun for your home, don’t own any, or look like you’re preparing for the zombie apocalypse.
You’ve fought with someone about gun control.
Someone (maybe even you?) inevitably brings up the Second Amendment. Maybe they’ve even brought up the Heller decision. In tandem, these two things have been utilized by gun advocates to argue that not only does gun control not make sense, but it’s unconstitutional.
Those people are wrong.
To understand why they’re wrong, we’ll need a quick background on the Heller decision.
District of Columbia v. Heller (2008) was about a challenge to a DC law that banned handguns and required that other guns (like hunting rifles) were rendered inoperable inside the home. There’s a little more to it than that, but that’s the gist.
The Supreme Court held by a 5-4 vote that the Second Amendment granted individuals the right to own and carry guns, therefore holding the DC law unconstitutional. The basic reasoning came from breaking down the text of the Second Amendment, by Justice Scalia, that led to the conclusion that the founders’ use of the word “militia” at the time simply meant every able-bodied man available and that “well-regulated” referred only to training and discipline of owning and operating a firearm.
Justice Scalia also breaks down the rest of the text, but again, that’s the important part.
The ruling was a landmark decision in gun-ownership rights and, though still debated in law schools and academic circles, now stands as the official interpretation of the Second Amendment.
As such, it’s a rallying cry for those who seem to believe that the Heller decision has made gun control unconstitutional.
Here’s why they’re wrong.
“Like most rights, the right secured by the Second Amendment is not unlimited . . . the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
The quoted text comes from Justice Scalia’s opinion in part III of DC v. Heller.
In the broadest terms, Scalia is admitting here that even though the Court’s reading of the Second Amendment led them to the belief that it protected an individual’s right to ownership (or the other way around, perhaps), it does not mean there can be no regulation of gun ownership. Much in the same way, there are certain restrictions on free speech, so too can the government restrict gun ownership so long as it doesn’t broadly infringe on the rights of individuals to own guns.
Scalia continues, noting that “nothing 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.”
You might recall that Trump repealed an Obama-era rule that would have blocked certain mentally ill people from buying guns. Trump, Republicans, and the National Rifle Association argued that the rule was unconstitutional.
Justice Scalia would disagree.
Trump and the NRA have also pushed for getting rid of “gun-free” zones in places like schools and military bases.
Again, as Justice Scalia pointed out specifically, there is no constitutional issue with gun-free zones.
Trump and the NRA claim that it’s the “gun-free” status of schools and the like that attract mass shooters, but it’s an argument that quickly falls apart under any sort of scrutiny. It isn’t random people walking off the street into schools to kill students, so obviously it isn’t just about an easy target. To counter that argument, Trump and his NRA handlers will blame TV, video games, the media in general, and poor mental health of the shooters.
Other countries watch the same TV shows, play the same video games, have much the same in media overall, and yet don’t have the issue with mass shootings that the United States does. So that can’t be it, right?
Mental health absolutely might be a factor for many of these shooters but, as you’ll remember, Trump has made it easier for those with mental illnesses to buy guns, so how sincere can they be about fixing the issue?
Pardon the slight digression. Back to Heller.
And really pay attention to this part, because this is really where their platform crumbles.
“We also recognize another important limitation on the right to keep and carry arms. [US v. Miller, 307 U.S. 174] said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ [emphasis added]”
A common gun-control stance is to ban the sale of “military-style” weapons like the AR-15 and all assault weapons. The NRA, Republicans, and the people who support them, swear that such measures are unconstitutional. The Second Amendment, they claim, protects the rights of the people as a militia and that includes weapons needed to overthrow the government if necessary and defend themselves from tyranny.
You see, I think, where this is going.
“It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”
In that one paragraph, Scalia kills any argument that individuals have the right to carry weapons similar to those used in the military. Not only does he address military-style weapons, he anticipates the argument that every “pro-gun” advocate makes in declaring the militia equivalent to the military, and rips its heart out.
Trump and the NRA, of course, oppose nearly all forms of proposed gun control legislation, despite its constitutionality.
This is not to say that what Trump, Republicans, and the NRA are doing is unconstitutional or illegal. The constitution is simply the farthest reaches of what the government may or may not do. Here, the Supreme Court stepped in and said the government in DC had gone too far, but did not, as too many attempt to argue, rule the idea of gun control unconstitutional.
Anyone making an argument otherwise is ill-informed, at best, and intentionally misleading, at worst.
The government may not take your handgun from you. Then again, no one is seriously arguing such a measure. The government may, however:
- Restrict gun sales to the mentally ill
- Restrict gun possession in certain areas
- Impose conditions and qualifications on gun sales
- Restrict the sale and ownership of “sophisticated arms” unusual to society but “most useful in military service”
Gun control advocates push an agenda focused on:
- Restricting gun sales to the mentally ill
- Restricting gun possession in certain areas
- Imposing conditions and qualifications on gun sales
- Background checks, mandatory training, waiting periods, etc.
- Restricting the sale and ownership of weapons “most useful in military service–M-16 rifles and the like”
Reasonable people can debate the pros and cons of such policies. Guns are a complicated issue, to say the least, and there are no easy solutions to breaking the cycle of gun violence in the United States.
It is, however, simply wrong to claim the Second Amendment — through its interpretation in the Heller decision — forbids gun control measures. Not only did Justice Scalia say no such thing, he specifically went out of his way to point out that the majority’s opinion should not be read to claim or insinuate their opposition to the legality of legislation restricting gun ownership in certain circumstances.