Second Amendment

by Jeremy Leaming

Sen. Chuck Grassley (R-Iowa) may believe the president has turned the Second Amendment on its head with a push for proposals to curb gun violence, but he’d do well to learn a bit more about the parameters of the amendment.

A good place to start would be a succinct letter signed by some of the nation’s leading constitutional law scholars that notes the Supreme Court has acknowledged the “presumptive constitutionality of laws designed to prevent gun violence, including restrictions on who has access to firearms and what types of firearms that they may have ….”

Grassley’s comments about the president’s call for new gun control measures came during today’s Senate Judiciary Committee hearing on gun violence. Grassley revealed his opposition to proposals to limit high-capacity ammunition magazines and suggested that violent video games are more responsible for mass shootings in the nation than easy access to military-style weapons.

UCLA Law School Professor Adam Winkler and University of Chicago Law School Professor Geoffrey R. Stone crafted a statement on the constitutionality of certain measures to curb gun violence. As this blog has noted on more than one occasion the Second Amendment does not provide for an unlimited individual right to bear arms. The professors’ statement, signed by more than 45 law school professors, notes that as well. (Winkler is the adviser to the ACS UCLA law student chapter, and Stone is former chair of the ACS Board of Directors. Winkler is also author of the influential book, Gunfight: The Battle over the Right to Bear Arms in America.)

Citing D.C. v. Heller, in which the high court found an individual right to own guns, the professors’ statement says in Heller Justice Antonin Scalia recognized that like other constitutional rights, “the Second Amendment is not absolute. The First Amendment, for example, provides that ‘Congress shall make no law … abridging the freedom of speech,’ but the Supreme Court has long and consistently held that some types of speech – for example, defamation, obscenity and threats – can be regulated; that some people – for example, public employees, members of the military, students and prisoners – are subject to greater restrictions on their speech than others; and that the government can reasonably regulate the time, place and manner of speech. As Justice Scalia explained in Heller, the rights guaranteed by the Second Amendment are likewise subject to appropriate regulation in order to enhance public safety.”

The statement, available here, goes onto to argue that proposals like universal background checks, regulation of high-capacity ammunition magazines and military-style assault weapons are “clearly consistent with the Second Amendment.” The professors, add that they have “no view on the effectiveness or desirability of the policies reflected in the various proposals, but we all agree that none infringes on the core right identified in by the Court in Heller.”

by Clark Taylor

The tired refrain from gun advocates that “guns don’t kill people, people kill people,” pushes the wobbly claim that even without the easy availability of guns people would use other means to destroy life. Alan Gura of the Second Amendment Foundation, for example, writes in a piece for the Baltimore Sun, “The problem is that, regrettably, there are going to be criminals and crazy people ….”

Gura misses the point, and hopes others will as well. For it does not follow that violent-prone individuals like the Aurora, Colo. shooter could have used other means to commit their crimes, we should not bother to seek commonsense regulation of firearms. This is a false choice. Just because something will not perfectly solve a problem does not mean that policy makers should ignore the matter – the perfect should not be the enemy of the good. 

In McDonald v. Chicago, the U.S. Supreme Court ruled that individuals have a Second Amendment right to bear arms. What the Supreme Court did not hold, however, was that this right was an unqualified one subject to no regulation. 

But the National Rifle Association however, continues to fight even existing gun regulations. It seeks to roll back existing background checks. It argues for guns to be sold at gun shows without background checks. (NRA members themselves are in favor of a certain level of regulation, suggesting that the NRA leadership is more extreme than the members they represent.)