We hear a great deal about the Second Amendment these days. In the midst of an epidemic of gun violence (which is sadly, only the second worse epidemic we are facing now), we are told that any proposed policy changes to try to address this carnage run afoul of the Second Amendment.
Every time former President Trump endorses someone, he says exactly the same thing: “He or she (but probably he) is very strong on crime, our great vets and 2A”. What that really means is “He or she (still very likely he) has sufficiently sucked up to me personally”, but the point is the same. The Second Amendment has taken on mythical, talismanic significance in right-wing circles. The thing is, this worship of the Second Amendment in the context of gun control policy is misplaced.
We must first put aside the fact that most 2A adulates do not embrace any other part of the Constitution with equal fervor. Many of those who die (which means kill) for the Second Amendment, are slightly less on board with jumping into their graves for the Eighth Amendment’s prohibition on cruel and unusual punishment, or the Fifth Amendment’s right against self-incrimination. In fact, it seems that at least some people believe that the Second Amendment is the only thing in the Constitution, which makes me wonder why they think it’s called the “Second” Amendment.
The bigger problem with those who insist that the Second Amendment requires us to give bazookas to people with a history of threatening to blow up whole hemispheres of the planet, is that they simply have no idea how the Constitution actually works. Justice Robert Jackson famously wrote “The Constitution is not a suicide pact”. This means that the rights protected by the Constitution are not absolute. As fundamental rights, they must be granted great deference, But they must also be balanced against the interests of the state in fulfilling some of it’s basic obligations of ensuring a safe, livable society.
In response to this obvious need to balance rights versus interests, the US Supreme Court has come up with balancing tests. So you see how clever one becomes just by putting on those robes. Any time a law is passed and challenged on constitutional grounds, the courts are required to weigh the state’s interest in the law versus how severely it impacts a right. If the law does not impinge on a fundamental right, it must only pass what is called the “Rational Basis Test” meaning that the law is rational.
“Rational” in this context does not mean “good” or “wise”. It simply means that there must be an articulable reason for the law that is at least “somewhat” related to a “legitimate state interest”. Almost every law challenged on this basis survives the rational basis test. So, laws that require everyone to change their name to “Wilbur ‘the Ostrich’ Finnigan” or to wear their underwear on the outside would probably be struck down under this standard, although, with the new majority on the Supreme Court, I’m not so sure.
If a law does impinge on a fundamental Constitutional Right, the test is much tougher. The law must survive what is called the “Strict Scrutiny Test”. This says that the law must serve a “compelling” (as opposed to “legitimate”) state interest, and there must be a very tight fit between the law and that compelling state interest, meaning there is very little tolerance for collateral damage. A high percentage of laws, but certainly not all, analyzed under the Strict Scrutiny Test are struck down.
There is also something called “Intermediate Scrutiny” which falls between these two other tests. But you only need to know the details of this if you plan to take a Con-law final exam in the next couple of weeks, or if you are looking for a way to get people to stop talking to you at parties.
So, let’s take the First Amendment for example. Whereas you can argue that the Second Amendment is vaguely written, what with all that falderal about about “well regulated militias”, the First Amendment is crystal clear. It says that “Congress shall make NO law…abridging freedom of speech”. It’s hard to get clearer than “NO LAW”. But yet, over the decades of applying balancing tests, the Courts have upheld all kinds of laws abridging free speech. For example”
= You can’t yell ‘FIRE!” in a crowded theater. I’m not sure if that applies if there is an actual fire. I’ll have to check on that.
= You can’t lie in advertising, which is why you are not allowed to call Hot Pockets “food”.
= You can’t disclose state secrets.
= You can’t defame somebody
= You can’t use “fighting words”, such as saying that Ringo was the “cute Beatle”
= You can’t incite violence. If only I could think of a recent historical example of that.
In all of these cases the Court acknowledged that the laws in question restricted speech. But it said that balancing the infringement against the compelling interests of the state, usually relating to public safety and security, the state’s interests prevailed, This is how Constitutional analysis works in the context of every right. There are exceptions to the right to be free of unreasonable search and seizure, or the right not to incriminate yourself, etc. The Second Amendment is no exception.
The right to bear arms is a fundamental right. The Supreme Court decided that in DC v. Heller in 2008. But the state’s interest in protecting public safety and preventing violence has found to be legitimate and compelling. This means that any law that impinges on the Second Amendment’s right to bear arms will be strictly scrutinized to see how significant the impingement is, what the state’s interest is in passing that law, and how tight the fit between the state’s interest and the law is. The result of this will be that some, reasonable, thoughtful gun-control laws will be upheld, and others, that go too far, will be struck down.
For example, I believe a law which prohibits someone from bringing a gun into a school board meeting, or limits the number of bullets in a clip to 10 would pass constitutional muster, whereas a law that confiscated all handguns (which nobody has actually proposed) would not. Admittedly, I’m not a Supreme Court Justice. But with Biden in now, it seems like that’s only a matter of time.
The bottom line is that reasonable gun-control laws are not only wise, but are also perfectly Constitutional. The Second Amendment does indeed protect your right to bear arms. But it does not preclude reasonable efforts to make our streets a bit safer than they are now.