It’s difficult to overstate the rhetorical power of the words “Second Amendment” in the current political climate. Despite a number of horrific mass shootings, a near-insurrection, and the rise in visibility of anti-government militia groups — plus the undeniable power of the National Rifle Association — those two words are still invoked to cut off conversation about gun control, treating any regulation of access to guns as an infringement on the protection that amendment grants.
In the wake of horrific mass shootings in Buffalo, New York, Uvalde, Texas, and Tulsa, Oklahoma, calls for federal gun control legislation have been met once again with defenses from firearms owners and advocacy groups like the National Rifle Association that the Second Amendment, the constitutional right to bear arms, is inviolable.
The staunchest firearms advocates, including Texas Sen. Ted Cruz, NRA CEO Wayne LaPierre, and attendees at the NRA’s annual convention, held in Houston, Texas just days after a man with an AR-15-style rifle killed 19 children and two teachers at Robb Elementary School — have blamed mass shootings on everything from insufficient police presence at schools, to mental illness, to the perceived lack of Christian influence in daily American life.
“If you allow somebody to defend themselves the way our Second Amendment was intended… you’ll stop a lot of this,” a conference attendee identified only as Anna told the Texas Tribune. Another, Lyndon Boff, blamed the education system for mass shootings, saying, “... the first thing you have is a president that says ‘we got to do something about it, because it’s guns that killed the people.’ No. It’s their programs teaching children in school that our country is a bunch of crap.” LaPierre, for his part, said that restricting the “fundamental human right” of individuals to protect themselves and their property in order to prevent mass shootings “is not the answer; it never has been” in a speech addressing the convention.
“The rhetorical power of the Second Amendment shouldn’t be understated,” Eric Ruben, a professor at SMU’s Dedman School of Law and fellow at the Brennan Center for Justice, told Vox. That power, he said, was well understood by the late Supreme Court Justice John Paul Stevens, who wrote in a 2018 New York Times op-ed of the 2008 Supreme Court case District of Columbia v. Heller, “That decision — which I remain convinced was wrong and certainly was debatable — has provided the NRA with a propaganda weapon of immense power.”
In the op-ed, Stevens advocated for overturning the Second Amendment, which, he wrote, “would be simple and would do more to weaken the NRA’s ability to stymie legislative debate and block constructive gun control legislation than any other available option.” Democratic members of Congress have called for such debate in the wake of recent mass shootings and plan to gather testimony from victims and families in an upcoming hearing. But attempts to enact gun control legislation on a federal level are likely to encounter roadblocks this time around, as they have after mass shootings in the previous decade and a half.
District of Columbia v. Heller and popular constitutionalism
As Ruben told Vox, and as Stevens pointed out in his 2018 op-ed, Heller was the case that reoriented the understanding of the Second Amendment in judicial terms, to expressly give power to the individual to own firearms for their own protection. Prior court cases, like 1939’s United States v. Miller, looked toward the first part of the Second Amendment, which places the possession of weapons in the context of a well-regulated militia. That case allowed Congress to pass legislation against sawed-off shotguns, since, as Stevens wrote, “that weapon had no reasonable relation to the preservation or efficiency of a ‘well regulated militia.’”
But, as Ruben told Vox, by the time Heller was decided, many Americans agreed that the Second Amendment bestowed upon individuals the right to own handguns for their own self-defense — before the ruling even came down. Ruben traced that shift in understanding from the shift in reasons that people owned firearms — as popular interest in hunting and sport waned over the past several decades, people increasingly purchased firearms for protection against crimes in their homes.
“A lot of times, shifting public sentiment about the meaning of a given constitutional provision precedes changed judicial understandings. Heller can be understood as popular constitutionalism, in that way,” Ruben said.
Popular constitutionalism — essentially, the interpretation of law in line with contemporary values and ideas — partly explains the Heller decision, as Yale Law School professor and scholar Reva Siegel wrote in the Harvard Law Review. But the Heller decision is interesting, in that the argument for judgment in the direction of popular constitutionalism also depends on the modern understanding of the Second Amendment as the original meaning of the amendment; in other words, many Second Amendment advocates believe that their modern interpretation is actually the original intention of the framers.
“These practices of democratic constitutionalism enable mobilized citizens to contest and shape popular beliefs about the Constitution’s original meaning and so confer upon courts the authority to enforce the nation’s foundational commitments in new ways,” Siegel wrote, tracing activism around the gun rights movement during the 20th century, and how such activism framed American understanding of the originalist meaning of the Second Amendment.
It’s an interesting challenge to the question of whether the public and the Court consider the Constitution to be a living document, which needs to be interpreted based on contemporary values and needs, or whether it’s something to be judged only on its legal contents, without the imposition of modern-day politics. In Siegel’s view, the Heller decision blurs that line.
Gun control can work on a state level
“The Second Amendment is really important, but that alone isn’t the bogeyman,” Ruben told Vox.
Heller and particularly McDonald v. Chicago, a 2010 case in which Otis McDonald and others challenged the city of Chicago’s 1982 handgun restrictions, addressed the Second Amendment on a federal level. The two cases are linked; in McDonald, the Court found that the Second Amendment right for an individual to keep and bear arms for self-defense is supported by the Fourteenth Amendment’s due process clause — thereby incorporating the Heller decision against the states.
The combination of the decisions in Heller and McDonald opened up the possibility for challenges to state gun control legislation, while culture wars and gun rights activism turned the mere phrase into a toxic, conversation-ending soundbite — but gun control legislation is still possible on the state level, Ruben said.
“The vast majority of states have their own constitutions, and their own rights to keep and bear arms, and a lot of those state constitutional rights to keep and bear arms had already been interpreted, or were explicit, that they protected a private right to have a gun for self-defense,” he told Vox. What’s more, the Heller decision doesn’t infringe on the rights of states to enact restrictions and gun control regulations on a multitude of weapons, including weapons like the M16, of which AR-15-type rifles are essentially the form for sale to civilians.
Of the more than 1,000 challenges to state gun restrictions Ruben and his co-author Joseph Blocher found in their 2018 study, 90 percent of those cases failed to overturn gun control regulations. According to the Giffords Center, there have now been more than 1,400 such challenges, few of which have succeeded.
Meaningful gun control laws have even been passed in the wake of recent mass shootings. After 17 people were killed in a mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, in 2018, then-Gov. Rick Scott, a Republican, passed a package of gun control legislation that included a measure to push up the minimum age to purchase a rifle or shotgun from 18 to 21.
The New York state legislature passed a similar measure after an 18-year-old shooter with an AR-15-style rifle entered a Tops grocery store in Buffalo, New York, in May and killed 10 people there, all of them Black, in a racially motivated crime. The new laws in New York include requiring people to pass a background check and take a gun safety course in order to get a permit to own a semiautomatic rifle, the New York Times reports.
Certainly, these are incremental measures passed only after irreparable harm to families and communities, but it’s important to note the places where and ways in which change is possible — and to understand that the Second Amendment, even as interpreted in Heller, can actually back up these necessary changes, at least for the time being.
That’s not to say that the conservative majority on the Supreme Court won’t issue a more extreme interpretation of the Second Amendment in the near future. New York State Rifle & Pistol Association v Bruen, a case that challenges a New York law requiring people who wish to carry a gun in public to obtain a license, be 21 years old with “good moral character” and no criminal history — as well as demonstrate the necessity to carry the firearm in public — could open up a number of gun restrictions already on the books in states to legal challenge, depending on how it’s decided, Darrell Miller, a Second Amendment expert at Duke Law School, said in an interview with the Brennan Center’s Andrew Cohen.
“The justices at oral argument seemed genuinely concerned that a broad ruling on public carry would embroil them in all kinds of minutiae about where guns can be prohibited — campuses, subway cars, Times Square on New Year’s Eve, etc.,” he said, explaining how complicated it would be for federal district court judges to oversee and decide where guns should be prohibited in their jurisdictions.
But, Miller said, the power of conservative politics in this case can’t be ruled out. “That said, there’s a conservative supermajority on the Court that is clearly ready to flex its muscles on issues that conservatives have long cared about — from abortion restrictions, to free exercise, to gun rights — so I can’t rule out a broad and broadly disruptive ruling that would upend not only New York’s regulations but would call into question the constitutionality of nearly every gun regulation, in every state, at every level of government.”
Correction, June 6, 12:20 pm: The previous version of this story misstated the number of challenges to gun laws in 2018. There were more than 1,000 at that time, and there have now been more than 1,400.