Second Amendment

  • July 28, 2014

    by Ellery Weil

    The New York Times is calling for the federal government to repeal laws banning marijuana, saying that as a substance it is less dangerous than alcohol, and the social costs of keeping it illegal are too vast to justify its current legal status. “The social costs of the marijuana laws are vast. There were 658,000 arrests for marijuana possession in 2012, according to the FBI figures, compared with 256,000 for cocaine, heroin and their derivatives. Even worse, the result is racist, falling disproportionately on young black men, ruining their lives and creating new generations of career criminals.”

    Prachi Gupta in a piece for Salon explores the recent federal judge’s ruling that D.C.’s public handgun ban is unconstitutional.

    NPR’s Rebecca Buckwalter-Poza discusses Alabama’s high rate of death penalty sentences, especially in light of recent debate surrounding capital punishment. On MSNBC’s “Melissa Harris-Perry,” ACS Vice President of Network Advancement Sarah Knight discussed the recent Arizona death penalty debacle, where it took the state almost two hours to execute a condemned death row inmate. 

    Sarah Kliff at Vox reports on pro-choice legislators using the Supreme Court buffer zone ruling as a guideline for new, safer abortion clinics which can be protected as effectively as possible. On the same “Melissa Harris-Perry” show, ACS’s Sarah Knight joined a discussion about the Supreme Court’s opinion earlier this summer invalidating Massachusetts’ abortion clinic buffer zone law.

  • September 30, 2013

    by Jeremy Leaming

    Earlier this year, a little more than a month after mass shootings at a Connecticut elementary school, President Obama discussed the challenges of trying to implement gun safety measures and announced more than 20 executive orders, including an order for the Centers for Disease Control to study ways to reduce gun violence. The president’s call for Congress to take action and approve modest new measures flopped … in the Senate. And even if senators had approved new measures promoting gun safety it is hard to believe they would have been considered in the House of Representatives, where Republicans are bent on protecting the financial industry and defunding of the Affordable Care Act.  

    But executive orders alone are hardly going to reframe the debate let alone significantly curtail gun violence. Yet another study shows how obstinate refusal to even basic reforms of gun regulation is needlessly taking innocent lives yearly.

    In an extensive piece forThe New York Times, Michael Luo and Mike McIntire reveal that accidental deaths of children because of guns are far higher than government statistics show, primarily because of the success of the gun lobby in defeating all kinds of efforts, including research to promote gun safety. The Times reported that a “review of hundreds of child firearm deaths found that accidental shootings occurred roughly twice as often as the records indicate, because of idiosyncrasies in how such deaths are classified by authorities. As a result, scores of accidental killings are not reflected in official statistics that have framed the debate over how to protect children from guns.”

    That debate has largely been controlled by gun enthusiasts and their lobbyists, who frequently blast any regulation as an encroachment on Second Amendment rights to keep and bear arms. For, example, The Times noted that the National Rifle Association cited the inaccurate numbers of accidental child firearm deaths in its campaign to scuttle laws requiring the safe storage of guns. State lawmakers ape the NRA’s talking points, often arguing that safe-storage laws would undermine adults’ efforts to protect themselves from intruders.

    Moreover the newspaper noted that the gun lobby has remained successful at making sure firearms remain exempt from “regulation by the Consumer Product Safety Commission.” As one expert lamented, “We know in the world of injury controls that designing safer products is often the most efficient way to reduce tragedies. Why, if we have childproof aspirin bottles, don’t we have childproof guns?”

    The U.S. Supreme Court, led by Justice Antonin Scalia, ruled in 2008 in D.C. v. Heller that the Second Amendment protects an individual right to bear arms. That ruling greatly enhanced the gun lobby’s cudgel against any consideration of new gun safety measures, such as ones intended to encourage parents to keep firearms stored safely.

  • February 5, 2013
    Guest Post

    by Adam Winkler, professor of law at UCLA School of Law and author of Gunfight: The Battle over the Right to Bear Arms in America

    As Congress considers proposed reforms to the nation’s gun laws, opponents of reform have appropriately drawn attention to the Second Amendment. The Second Amendment protects the rights of individuals to have guns and lawmakers have an obligation to consider whether any law they pass is consistent with constitutional law. No member of Congress should vote for a bill that violates the Second Amendment.

    Where opponents have gone wrong is in constitutional analysis. They claim the Second Amendment would be infringed by the proposed reforms, which include universal background checks, limits on high-capacity magazines, and restrictions on assault weapons.

    Yet none of these laws are likely to be overturned by the Supreme Court as violation of the Second Amendment. That is the view expressed by over 50 distinguished constitutional law professors in this Statement of Professors of Constitutional Law: The Second Amendment and the Constitutionality of the Proposed Gun Violence Prevention Legislation. The signatories include Laurence Tribe, Richard Epstein, Eric Posner, Reva Siegel, Geoffrey Stone, Charles Fried, Walter Dellinger, Dawn Johnsen, Larry Lessig. I was one of a number of Second Amendment specialists who signed, including Sandy Levinson, Mark Tushnet, Joseph Blocher, Jamal Greene, Michael Dorf, Carlton Larson, and Lawrence Rosenthal.

  • January 30, 2013

    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.”

  • January 14, 2013

    by Jeremy Leaming

    Despite the reality that President Obama took no action during his first term to advance gun safety or sensible gun control measures, gun enthusiasts convinced themselves, with the help of right-wing pundits, that the president is not only a socialist but a budding tyrant preparing to confiscate gun owners’ arsenals from coast to coast. And this caricature has been a boon for gun manufacturers and sellers.   

    Over the weekend, The New York Times reported sales of guns, “which began climbing significantly after President Obama’s re-election,” have “soared” since the mass-shooting in Newtown, Conn., and the high-profile discussion of enacting gun safety regulations. An Iowa “independent gun dealer” told the newspaper, “If I had 1,000 AR-15s I could sell them in a week.”

    And now that the president and other lawmakers, such as N.Y. Governor Andrew Cuomo, Md. Governor Martin O’Malley and Colo. Gov. John Hickenlooper, are taking steps to enact gun control measures, gun enthusiasts are becoming louder, some hysterical and others going ballistic.

    The National Rifle Association has been predictable and lame. The group blamed the arts, such as movies, for spurring gun violence and argued that more guns are the solution. In late December, the group’s Vice President Wayne LaPierre, said armed guards should be placed in the nation’s schools. James Yeager of a Tennessee company that apparently trains people to use weapons said in a YouTube video that if the president issued an executive order promoting gun safety that he would “start killing people.” Other chuckleheads have taken to the airwaves to threaten violence if the government were to take any action to curb gun violence.

    What this period of discussion about the nation’s obsession with guns and how to take some measured steps to curb gun violence has exposed, in part, is that the gun lobby is growing tired and extremists are jumping into the fray. Many of these gun lovers believe that the Second Amendment is absolute. First, very few things in life are absolute and certainly there are very few if any rights provided by the Constitution that are absolute. For instance, the First Amendment does not protect all speech and expression. Political speech is provided more protection than commercial speech, speech advocating illegal conduct is not wholly protected under the First Amendment. What about the Fourth Amendment. We know that not all government searches are illegal. Indeed the Fourth Amendment has a lot of exceptions for police officers, acting in good faith and under certain circumstances, to conduct searches and seize property that many would argue are unconstitutional.

    I could go on, but the point is that the Second Amendment does not forbid the regulation of guns. It is likely too much to ask of many of the rabid gun enthusiasts to read D.C. v. Heller, the U.S. Supreme Court decision that held an individual does have the right to “keep and bear arms.”