What Does It Mean to Support the Second Amendment?
If opponents of gun control measures are supporters of the Second Amendment, then it might seem that proponents must be opponents of the Second Amendment. That is just plain wrong.
April 06, 2018 at 05:19 PM
5 minute read
Former U.S. Supreme Court Justice John Paul Stevens, who dissented in Heller v. District of Columbia, made clear his sympathy with the recent push for gun regulation in a recent New York Time's op-ed urging repeal of the Second Amendment.
There is no inconsistency between Stevens' ambitious reform proposal, and my more modest urging that the media and commentators use language more carefully in discussing the contemporary debates about guns in American society.
Amid the current controversy about gun control, a variety of commentators and media outlets use the phrase “supporters of the Second Amendment” to refer to those who oppose one suggested control measure or another.
This way of characterizing opposition to control measures is fraught with ambiguity at best and outright misunderstanding at worst. For if opponents of gun control measures are supporters of the Second Amendment, then it might seem that proponents must be opponents of the Second Amendment. That is just plain wrong.
And there could be serious consequences to that misunderstanding. The crux of that problem is that the United States Constitution—including its amendments—is a revered document in American political and legal culture. If opponents of gun control measures are taken to be opponents of the Second Amendment, they likely start with a big disadvantage in the public and legal debate.
Interpretation of what is taken to be authoritative language—whether of the Bible or a statute, contract, or Constitution—is a complex and often controversial enterprise, and it is not my aim here to delve deeply into those complexities as applied to the Second Amendment. But there is no plausible contemporary understanding of that amendment that pits it against many of the gun control measures that have surfaced in the recent demonstrations and debates.
Part of the confusion may arise because, broadly speaking, the gist of the Second Amendment has itself been controversial over the years. Nor is that surprising, given the language (and brevity) of the amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.
The most obvious interpretational ambiguity is whether the announced “right of the people to keep and bear arms” is applicable only as it bears on militia(s), on the one hand, or rather is a right to which people are entitled, apart from palpable effect it might have on the functioning of militias.
I will concentrate in what follows on what the courts—and particularly the U.S. Supreme Court—have said about the meaning of the Second Amendment. Courts are not the only place where constitutional language is interpreted, but the Supreme Court is conventionally understood as the most authoritative body for probing those interpretational questions.
Not surprisingly, over the years the court has been divided about how to resolve the ambiguity about the role of militias in interpreting the Second Amendment. In its 2008 decision in Heller, the court split 5-4 on this question, with the majority holding that the Second Amendment right to keep and bear arms need not be tied to facilitating the functioning of militias. If we take that as solving the militia ambiguity, however, it by no means resolves questions of what is implied for one gun control measure or another by “support” for or opposition to the Second Amendment and its “right to keep and bear arms.”
The principal dissent in Heller, written by Stevens, did not concentrate on that set of questions, but the majority gave some attention to what that right means, and what it said suggests that “support of the Second Amendment” is quite consistent with many proposed gun control measures. Here is just some of the majority's language that is receptive to regulation:
Although we do not undertake an exhaustive historical analysis of the full scope of the Second Amendment, 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.
This language—and a variety of other things said by the majority—by no means solves all contemporary regulatory questions, but it clearly opens space for a wide range of reasonable regulations of firearms. Needless to say, the dissent would find little with which to quarrel in the quoted passage.
Stevens' suggestion to repeal the Second Amendment would require a constitutional amendment, and amendment of the United States Constitution is very hard to pull off.
Ratification of amendments requires three-fourths of the states, which means that just 12 states could block the amendment. There are certainly more than 12 states where attempted repeal of the Second Amendment would generate a lot of opposition. There is perhaps also some danger that a failed attempt at repeal might feed into a narrative that “support of the Second Amendment” is equivalent to very broad opposition to regulation of firearms.
It may be that those who use the phrase “supporters of the Second Amendment” do not mean it to be taken literally. And perhaps their readers and listeners do not understand it literally. But the danger of misunderstanding is real, and the easy solution is simply to substitute “opposition to gun control measures” for “support of the Second Amendment.”
Robert W. Bennett is professor of law emeritus at Northwestern University Pritzker School of Law and co-author of “Constitutional Originalism: A Debate” (Cornell University, 2011).
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllProtecting Attorney-Client Privilege in the Modern Age of Communications
6 minute readLingering Questions at Supreme Court About Climate Change Litigation Need Resolution
6 minute readTrending Stories
- 1King & Spalding E-Discovery Director Jumps to Nebraska Women-Owned Firm
- 2Nation's Largest Utility Parts Ways With CLO Who Helped It Navigate Bribery Scandal
- 3Advocates Renew Campaign for Immigrant Right to Counsel in New York
- 4From ‘Unregulated’ to ‘A Matter of Great Concern’: PFAS Regulation under Biden
- 5Public Interest Lawyers in NY Fear Rollback of Federal Loan Assistance in '25, Ask Gov. to Add $4M to State Program
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250