Published December 20, 2012
A close look at the 2nd AmendmentCASS R. SUNSTEIN
The rise of the Second Amendment as a serious obstacle to gun control legislation is astonishingly recent. Its rise is a tribute less to the vision of the Founding Fathers than to the skill, money and power of the contemporary gun-rights movement, which has not only exerted disproportionate influence on Congress, but also helped transform the landscape of constitutional argument. We should be able to have a serious national discussion uninhibited by wild and unsupportable claims about the meaning of the Constitution. Here’s a quick way to see how rapidly things have changed. Warren Burger was a conservative Republican, appointed chief justice by President Richard Nixon in 1969. In a speech in 1992, six years after his retirement from the court, Burger declared that “the Second Amendment doesn’t guarantee the right to have firearms at all.” In his view, the purpose of the Second Amendment was only “to ensure that the state armies and militia would be maintained for the defense of the state.” To understand what Burger was thinking, consider the words of the Second 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.” It could be read not to confer an individual right, but to protect federalism, by ensuring that the new national government wouldn’t interfere with citizen militias at the state level. It is striking that before its 2008 decision in District of Columbia v. Heller, the Supreme Court had never held that the Second Amendment protects an individual right to have guns. It wasn’t until the 21st century that lower federal courts, filled with appointees of Presidents Ronald Reagan and George H.W. Bush, started to adopt the individual-rights position. And, of course, the Supreme Court itself adopted that view in 2008, by a 5-to-4 vote. What is important to see is that in the very recent past, the United States has lived through a Second Amendment revolution. More important still, the Supreme Court has proceeded cautiously, and it has pointedly refused to shut the door to all gun regulation. “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.” In the political arena, opponents of gun control, armed with both organization and money, have been invoking the Second Amendment far more recklessly, treating it as a firm obstacle to any effort to regulate guns and bullets. They have made it difficult for Congress, and many state legislatures, even to hold serious discussions about what sorts of regulation might save lives. Reasonable people can debate about what policies would actually work. That is a debate worth having. It is past time to stop using the Second Amendment itself as a loaded weapon, threatening elected representatives who ought to be doing their jobs. Cass R. Sunstein is Harvard University law professor and Bloomberg View columnist.