Guns: Working Around the Second Amendment

By David K. Shipler

            Please forgive the cynicism, but here’s a prediction: For all the heartfelt hand-wringing and passionate calls to action since the Newtown massacre, Americans will not be made safer from gun violence. After a year or five years (let’s give Congress plenty of time), the country will still be awash in firearms, they will still be available to many untreated mentally ill people, and mass shootings will still occur on occasion, probably even in schools. Guns exist in a perfect storm of politics, law, and culture not easily revised.

In the most optimistic scenario, the Second Amendment might serve as an asset to those favoring modest controls, for under recent Supreme Court rulings, gun ownership is no longer jeopardized. Recognizing an individual right to bear arms rather than one based only in state militias, the thin conservative majority has effectively eliminated what the National Rifle Association and its supporters saw as the dire threat that all guns would eventually be outlawed and taken from the hands of law-abiding citizens.

That cannot happen as the Second Amendment is now interpreted. In both District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), a 5-4 majority ruled that the right to keep a loaded gun at home was protected by the Second Amendment. Whether the right extends to handguns outside the home remains uncertain until the justices consider cases that have been decided differently in lower courts.

            But no constitutional right is absolute. The First Amendment right to free speech does not protect incitement to imminent violence, for example, or cross-burning on a black family’s front lawn. The Fourth Amendment right “against unreasonable searches and seizures” does not preclude warrantless searches of vehicles containing criminal evidence in plain view, for example, or pat-downs of pedestrians whom police have reasonable suspicion to believe are carrying guns illegally. This has led to wholesale frisks in minority neighborhoods.

So the Court sketched the limits of the Second Amendment. “Nothing in our opinion,” Antonin Scalia wrote for the majority in Heller, “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 leaves legislators plenty of room to build a superstructure controlling guns. It left intact the federal ban—18U.S.C. 922(g)—on gun possession by people in multiple categories, including felons, fugitives, drug addicts, foreigners here illegally or as nonimmigrants, those dishonorably discharged from the military, anyone convicted of domestic violence or subject to a restraining order in such a case, and someone “who has been adjudicated as a mental defective or who has been committed to a mental institution.”

Nothing in the Supreme Court’s Second Amendment rulings thus far prevents the Justice Department from enforcing this law more vigorously. Nor does it prevent Congress from extending background checks to those purchasing weapons at gun shows, which are now exempt. Limitations on ammunition sales, and strict registration of bullets, might pass muster: How many rounds do you need to defend yourself? (With some 300 million guns in the U.S. already, even banning all new ones wouldn’t make a dent.) Nothing would bar Congress from restoring the ban on assault weapons, such as those used in Newtown and other recent murders, and expanding the definition of such rifles, which are not needed for hunting, target practice, or self-defense. They were developed by the military as high-velocity weapons to kill as many people as possible in combat.

If gun supporters would take comfort in the Supreme Court’s opinions upholding their rights and would work within that framework for some measure of control, perhaps we could advance. It’s curious—but not surprising—that the same people who told us after 9/11 that we had to give up some liberty for security are not saying anything about that tradeoff now, when giving up some liberty to own and carry guns would certainly enhance security.

 The trouble is, it’s hard to see how regulating guns while retaining that core right to have them at home would have prevented the Newtown massacre. The rifle that was used could be outlawed, and so could large clips holding numerous rounds of ammunition. But if the preliminary evidence is correct, the guns were registered by the shooter’s mother, Nancy Lanza, who had no criminal record, mental illness, or other characteristics barring her from ownership. Nor did her son, Adam, as far as is known. (His reported Asperger’s syndrome is not generally associated with such violent behavior.) Even if he had fit into one of the prohibited categories, guns in a house are obviously available to anyone there. He could have used the two handguns he carried to the school, and could have reloaded clip after clip. So the Supreme Court’s judgment on Second Amendment rights opens access to guns to anyone in the household, including those barred by law from having them.

That’s the reason for the pessimistic prediction. It’s true, as The New York Times editorialized, that “this is a country that has a history of facing tragedy and becoming better for it. . . . It is a country able to rethink deeply seated beliefs.” It’s also true that the familiar conversation that follows such gun tragedies now contains some new overtones, namely the willingness of a few conservative Democrats—not Congressional Republicans so far—to switch positions and urge some gun control.

Once the National Rifle Association and other gun supporters also come around, as they could easily do in light of the Court’s rulings on the Second Amendment, then the country can begin to get off its knees and try standing for the common good.