Our country’s fixation on guns and the resistance to enacting sensible gun safety laws necessitate a more accurate and nuanced discussion. One of the major issues lies in the tendency of politicians and news outlets to mindlessly parrot the phrase “Second Amendment” when it is uttered by extremists who are overly zealous about firearms.
The question, “What do you think about the Second Amendment?” doesn’t really make sense. The Second Amendment exists, along with the First and Third Amendments, in the Bill of Rights. The actual text of the Second Amendment states, “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 National Rifle Association greatly favors the latter part of the sentence. This became convenient when the NRA shifted from its original role as a gun training and sportsman advocacy group to becoming advocates for gun manufacturers. The Brennan Center for Justice points out that the NRA’s headquarters in Fairfax, Virginia, now prominently displays oversized letters on the facade that no longer mention “marksmanship” and “safety.” Instead, the lobby wall proudly showcases the Second Amendment. However, visitors may not immediately realize that the text is incomplete. It states: “.. the right of the people to keep and bear arms, shall not be infringed.” Interestingly, the first half of the amendment, referring to the well-regulated militia, has been deliberately edited out.
For over 200 years, we have had a comprehensive understanding of the Second Amendment. The significance of the opening clause has always been acknowledged as it establishes the foundation for the rest of the amendment. Laws that do not encroach upon a well-regulated militia, like the National Guard, are generally considered to be in line with the amendment.
In 2008, there was a significant shift in the legal landscape with the Supreme Court case called “District of Columbia v. Heller.” This case was a response to the strict laws in the District of Columbia that almost completely banned handguns. The Supreme Court established a new precedent by recognizing an individual’s right to own handguns, which was no longer limited to the context of the militia clause.
In a 5 to 4 decision, the Court made a questionable extrapolation. There is now concern that the current Court may push even further in that direction. However, it is important to note that even in the majority opinion of the Heller case, written by Justice Antonin Scalia, the Court did not take an absolutist stance against all firearms regulations, despite the desires of gun enthusiasts. The case specifically focused on the use of handguns for self-defense within the home. Scalia acknowledged that the right secured by the Second Amendment is not unlimited, stating that past precedents have consistently emphasized that the right does not grant individuals the freedom to possess and carry any kind of weapon in any manner and for any purpose.
According to Scalia’s caution, it is evident that even with a broad interpretation of the current law on the Second Amendment, assault weapons bans, safe storage and insurance requirements, and red-flag laws would likely be deemed constitutional. However, state legislators often use the Second Amendment as an excuse to avoid implementing these reasonable gun safety measures, while paradoxically advocating for more guns in schools and public places.
Governor Bill Lee goes as far as labeling these insensitive legislative measures as “constitutional carry.” This only highlights how convoluted language can contribute to confused thinking. It is reminiscent of Lee’s manipulation of the term “school choice” to obscure the specifics of his widely criticized plan for school vouchers.
The idea of “constitutional carry” has also been embraced by various individuals and groups, including state and federal politicians, as well as right-wingers who seem to share a common vocabulary. As more and more people support common-sense gun safety regulations, it is crucial that we do not allow these individuals to manipulate the public discourse by falsely invoking the Second Amendment to oppose any legislation related to firearms.
