April 7, 2017

Private: Is the Second Amendment Becoming Irrelevant?


Adam Winkler, The Future of the U.S. Constitution

*This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

by Adam Winkler, ACS Board Member and Professor of Law, UCLA School of Law

One might think that the Second Amendment has never been more important to constitutional law. In the past decade, the Supreme Court for the first time held unambiguously that the Second Amendment guaranteed an individual’s right to have guns and we have seen hundreds of Second Amendment cases arise in the lower federal courts. The provision, which was for decades legally moribund, has been brought to life. That is why it may be especially surprising to realize that the Second Amendment is, in fact, becoming increasingly irrelevant. And the reasons why tell us something about the nature of constitutional law and the relative importance of political mobilization as compared to legal mobilizations.

Of course, the Second Amendment is a potent tool of political rhetoric; elected officials will continue to invoke it to justify permissive gun laws. In that sense, the Second Amendment is not irrelevant as a matter of politics. Yet, the story is much different if we look at the Second Amendment as a matter of constitutional law. One of the central purposes of a constitutional provision is to shape the law of the nation, separating out valid laws from invalid ones. Today, however, the Second Amendment already has little legal impact – and it is likely to become even less impactful over the next decade.

Consider perhaps the most important, cutting-edge Second Amendment question currently pending in the federal courts: discretionary permitting for concealed carry. This is an important doctrinal question, but one with a limited impact. Since the mid-1980s, a wave of reforms has swept the nation and now less than 10 states have discretionary permitting; the vast majority have nondiscretionary permitting and many states are moving to unrestricted carry, in which no permit is required. Even if the courts were to hold discretionary permitting laws to violate the Second Amendment, only a handful of states would be affected.

And the impact looks likely to get even smaller over time. The political Second Amendment is leading towards reforms that would effectively end discretionary permitting. A proposed “national reciprocity” law, which is the NRA’s highest legislative priority and likely to be considered by Congress soon, could make it lawful for a resident of a discretionary permitting state to obtain a permit to carry from a permissive state like Utah, which does not require residency, and carry his or her gun at home. If that law passes, the constitutional debate over discretionary permitting becomes mostly meaningless. Whatever the courts say about discretionary permitting will not have much, if any, impact on the law on the ground.

At least for the foreseeable future, we are likely to continue to see the political Second Amendment outpacing the legal Second Amendment on a host of issues. For advocates of gun control, this is a troubling development. They are winning in the courts, as nearly all gun control laws have been upheld under the Second Amendment. The opponents of gun control are nonetheless winning in the state and federal legislatures. Those political victories are proving to be far more important than judicial interpretations of the Second Amendment. That legislative success is a function of political mobilization – and highlights to gun control advocates how they must direct their activities. Winning broader political support for gun control will likely have a more profound impact on the law than any Supreme Court decision on the Second Amendment.