Taking Back the Second Amendment

In the aftermath of the most deadly mass shooting in American history, the issue of gun regulation is once again in the news. Gun-rights advocates continue to invoke the Second Amendment as an obstacle to common-sense gun regulations. Supporters of gun-violence prevention dispute the advocates’ interpretation of the Second Amendment. Some have even suggested repealing or rewriting this much-invoked but poorly understood part of America’s constitutional heritage. It is important to reaffirm a simple fact: The Second Amendment does not belong to gun owners alone but to all Americans. Nor does the Second Amendment pose a barrier to robust gun regulation—rather, it requires it.

Discussions of the Second Amendment typically focus on its first or second part. Gun-rights advocates typically ignore the preamble’s affirmation of the necessity of “a well regulated Militia,” or erroneously claim that the word Militia in the Founding era was just another term for “the people.” If one looks at the actual militia laws from this period, it is clear that militias were a subset of the population, the part “liable to bear arms.” Militias were also creatures of law. Just as a dozen friends could not gather to form a legal jury, a bunch of people arming themselves did not constitute a militia. The Founding Fathers had a different term for armed individuals acting without government authority: a mob.

We need to honor the whole text of the Second Amendment, not just the parts we like. The Founders were neither modern gun nuts nor champions of domestic disarmament. The reason the Second Amendment links together “a well regulated Militia,” “the security of a free state,” and “the right of the people to keep and bear Arms” stems from the Founders’ desire to steer a course between anarchy and tyranny. Without proper regulation, an armed populace could easily become a mob, and the Founders were deeply fearful of this prospect.

Photo: Svenwerk/Flickr
Photo: Svenwerk/Flickr

Modern gun-rights ideology is largely driven by fear. On the one hand there is the fear of anarchy and on the other an extreme fear of tyranny. Gun-rights culture thus dreads the zombie apocalypse as much as it fears black helicopters coming to take everybody’s guns away. With over three hundred million guns in America, it is hard to fathom how anyone, whether they are the most ardent gun-rights advocate or the most zealous supporter of European-style gun control, could seriously think domestic disarmament is a real threat or possibility. Nevertheless, gun-rights culture has developed the notion that unless everyone has their own private arsenal liberty will never be safe. This is a perversion of the Second Amendment, not its fulfillment. The language of the Second Amendment does not valorize private gun ownership as an unqualified good; it links this right to the security of a free state. Given that more Americans have been killed by guns in the period between 1968 and 2015 than have died in all of America’s wars combined, we ought to be asking a simple question: Are our lax gun policies contributing to the security of a free state, or undermining it?

The week before the massacre in Orlando, the Ninth Circuit Court of Appeals ruled, in Peruta v. San Diego County, that there was no constitutional right to carry a concealed weapon in public. As the constitutional scholar Michael Dorf has astutely observed, the Ninth Circuit Court engaged in an impressive act of originalist jujitsu, turning the logic of Justice Scalia’s decision in District of Columbia v. Heller against the radical agenda of gun-rights libertarians. There is much about Heller that justly merits the derision that has been heaped on the case by scholars from across the ideological spectrum. The logic of the opinion seems surreal at moments, and its distortions of the historical record, to advance a gun-rights agenda, are intellectually embarrassing. Scalia basically rewrote the history and text of the Second Amendment, so that it now effectively reads: “The right of individuals to have handguns in their home for reasons of self-defense shall not be infringed.”

Although there is much to lament about Heller, the opinion may have inadvertently pointed the way out of our current impasse over the Second Amendment. Justice Scalia correctly dismissed the idea that the Second Amendment only protects muskets; nobody would apply originalism in such a mechanistic fashion to the First Amendment and exclude modern communication mediums such as TV or the Internet from First Amendment protection. Scalia also declared that we should honor the scope that constitutional rights enjoyed when they were first enacted, and in doing so unintentionally provided an opportunity for extensive regulatory measures: He didn’t anticipate that scholars would take his injunction seriously and excavate the forgotten history of gun regulations from early America and England. The Peruta court made excellent use of this new body of scholarship to clear the smoke and fog surrounding the history of guns. Indeed, gun-rights advocates were flummoxed by the opinion, and even attacked the Peruta decision for placing too much emphasis on history and original meaning! When faced with the actual history, as opposed to the mythic histories that guided the Heller court, gun-rights partisans suddenly found Scalia’s originalism far less appealing. The irony is rich and worth savoring.

There are many other opportunities to engage in similar acts of originalist jujitsu regarding the Second Amendment. Take the effort to ban assault weapons, the type of gun used in the Orlando shooting. Some states have enacted bans, but the prospect of a national ban, the only way to prevent an easy end run around state bans, faces stiff opposition in Congress. Taking a cue from the Peruta decision, another option might be to require individuals who wish to possess such guns to submit to a much more extensive background check, including perhaps some psychological testing. The military does this, and if you want a military-style weapon, it is not unreasonable to test you for anger or impulse-control issues. If you want military firepower, you go through an enhanced background check and agree to mandatory in-home inspections of guns (or store your gun at an approved range). Such requirements could be imposed by Congress but administered by the states, something that also comports with the Second Amendment and creates a structural protection against those black helicopters. It would be hard to argue such requirements violate the Second Amendment given that they closely mirror laws on the books at the time the Second Amendment was ratified. The original Second Amendment did not merely grant a right; it imposed some pretty onerous obligations on the American people. It is time to bring back that aspect of the Second Amendment’s legacy.

The time has come to call out gun-rights absolutists on their distorted, ahistorical view of the Second Amendment. All Americans have a claim on the promise of security embedded in the text of the Constitution, and it is time to change our public conversation and take back the Second Amendment.

Saul Cornell holds the Paul and Diane Guenther Chair in American History at Fordham University and is the author of A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (Oxford University Press, 2006).