What does the Second Amendment mean in 2022?

What does the Second Amendment mean in 2022?

It’s hard to overstate the rhetorical power of the words “Second Amendment” in today’s political climate. Despite a number of horrific mass shootings, a near-insurgency and the rise of anti-government militias – as well as the undeniable power of the National Rifle Association – those two words are still being used. to cut off the conversation on gun control, treating any regulation of access to guns as a breach of the protection afforded by the amendment.

Following horrific mass shootings in Buffalo, New York, Uvalde, Texas and Tulsa, Oklahoma, calls for federal gun control legislation have again been met with gun owner defenses and advocacy groups like the National Rifle Association that the Second Amendment, the constitutional right to bear arms, is inviolable.

Guns’ staunchest advocates, including Texas Senator Ted Cruz, NRA CEO Wayne LaPierre, and attendees at the NRA’s annual convention, held in Houston, Texas, just days only after a man with an AR-15-style rifle killed 19 children and two teachers at Robb Elementary School – blamed the mass shootings on everything from insufficient police presence in schools, to mental illness, in passing through the perceived lack of Christian influence in American daily life.

“If you allow someone to defend themselves the way our Second Amendment was intended…you’ll stop a lot of things,” a conference attendee identified only as Anna told the Texas Tribune. Another, Lyndon Boff, blamed the education system for the mass shootings, saying: “…the first thing you have is a president saying ‘we have to do something about this, because these are the guns that killed people.’ No. It’s their programs that teach kids in school that our country is a piece of shit. LaPierre, for his part, said that restricting individuals’ “basic human right” to protect themselves and their property in order to to prevent mass shootings “is not the answer; it never was” in a speech to the convention.

“The rhetorical power of the Second Amendment should not be underestimated,” Eric Ruben, a professor at SMU’s Dedman School of Law and fellow at the Brennan Center for Justice, told Vox. That power, he said, was well understood by the late Supreme Court Justice John Paul Stevens, who wrote in a 2018 New York Times op-ed about the 2008 Supreme Court case. District of Columbia v. Heller“This decision – which I remain convinced was wrong and certainly questionable – provided the NRA with a propaganda weapon of immense power.”

In the op-ed, Stevens argued for overturning the Second Amendment, which, he wrote, “would be simple and do more to weaken the NRA’s ability to stymie legislative debate and block constructive legislation on gun control than any other available option”. Democratic members of Congress called for such a debate in the wake of recent mass shootings and plan to take testimony from victims and families at an upcoming hearing. But attempts to enact gun control legislation at the federal level are likely to run into obstacles this time around, as they have after mass shootings over the past fifteen years.

District of Columbia v. Heller and grassroots constitutionalism

As Ruben told Vox, and as Stevens pointed out in his 2018 op-ed, Heller was the case that shifted the understanding of the Second Amendment in judicial terms, to expressly empower the individual to possess firearms for their own protection. Earlier court cases, such as those from 1939 United States vs. Miller, turned to the first part of the Second Amendment, which puts gun ownership in the context of a well-regulated militia. This case enabled Congress to pass legislation against sawed-off shotguns, because, as Stevens wrote, “this weapon had no reasonable relationship to the preservation or effectiveness of a” well-regulated militia “.”

But, as Ruben told Vox, the moment Heller was decided, many Americans agreed that the Second Amendment gave individuals the right to own handguns for their own defense – even before the ruling was made. Ruben traced this shift in understanding to the shift in why people owned guns – as popular interest in hunting and sport waned in recent decades, people increasingly bought guns. guns to protect against crimes at home.

“Often, changes in public opinion about the meaning of a given constitutional provision precede changes in judicial understanding. Heller can be understood as popular constitutionalism, in this sense.

Popular constitutionalism – essentially, the interpretation of the law consistent with contemporary values ​​and ideas, partly explains the Heller decision, as Reva Siegel, a Yale Law School professor and scholar, wrote in the Harvard Law Review. But the Heller decision is interesting, in that the case for a judgment in the sense of popular constitutionalism also hinges on the modern understanding of the Second Amendment as the original meaning of the amendment – in other words , many supporters of the Second Amendment believe that their modern interpretation is in fact the original intention of the drafters.

“These practices of democratic constitutionalism allow mobilized citizens to challenge and shape popular beliefs about the original meaning of the Constitution and thereby empower the courts to uphold the nation’s fundamental commitments in new ways,” Siegel wrote, tracing activism around the gun rights movement during the 20th century, and how such activism shaped American understanding of the originalist meaning of the Second Amendment.

It is an interesting challenge to the question of whether the public and the Court regard the Constitution as a living document, which must be interpreted according to contemporary values ​​and needs, or whether it is something to be judged solely on its legal content, without the imposition of modern politics. According to Siegel, the Heller decision blurs this line.

Gun control can work at the state level

“The Second Amendment is really important, but that alone isn’t the bogeyman,” Ruben told Vox. While it’s true that Heller and especially McDonald v. Chicago, a 2010 case in which Otis McDonald and others challenged the city of Chicago’s 1982 handgun restrictions. The Court found that an individual’s Second Amendment right to own and bear arms to defend oneself is backed by the Due Process Clause of the Fourteenth Amendment – thus incorporating the Heller decision against the States.

The combination of decisions in Heller and mcdonalds has opened up the possibility of challenging state gun control legislation while culture wars and gun rights activism have turned the simple phrase into a poisonous, violence-ending sonic phrase. conversation, gun control legislation is still possible at the state level, Rubin said.

“The vast majority of states have their own constitutions and their own rights to keep and bear arms, and many of these states’ constitutional rights to keep and bear arms had already been interpreted, or were explicit, that they protected a private right to have a gun for self-defense,” he told Vox. Heller The decision does not violate the right of states to enact gun control restrictions and regulations on a host of weapons, including weapons like the M16, of which the AR-15 is essentially the form intended for sale to civilians.

This means, Ruben said, that in about 1,400 challenges to state gun restrictions in the years following the Heller decision, 90% of those cases did not overturn gun control regulations, according to his calculations.

Meaningful gun control laws have even been passed in the wake of the recent mass shootings. After 17 people were killed in a mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida in 2018, then-Governor Rick Scott, a Republican, passed a set of control laws firearms including a measure to raise the minimum purchase age. an 18 to 21 rifle or shotgun.

The New York State Legislature passed a similar measure after an 18-year-old shooter with an AR-15-style rifle walked into a Tops grocery store in Buffalo, New York in May and killed 10 people there, all black, in a racially motivated crime. New York laws require people to pass a background check and take a gun safety course in order to get a license to own a semi-automatic rifle, The New York Times reports.

Granted, these are progressive measures enacted only after irreparable harm to families and communities, but it is important to note the places where and the means by which change is possible – and to understand that the Second Amendment, even as that it is interpreted in Hellercan actually save those necessary changes, at least for now.

That’s not to say the conservative majority on the Supreme Court won’t issue a more extreme interpretation of the Second Amendment in the near future. New York State Rifles and Pistols Association vs. Bruen, a case that challenges a New York law requiring people who wish to carry a firearm in public to obtain a license, be 21 years old with “good character” and no criminal record – as well as to demonstrate the need to carrying the gun in public — could open a number of gun restrictions already listed in states to a legal challenge, depending on the ruling, said Darrell Miller, a Second Amendment expert at Duke Law School, in an interview with Andrew Cohen of the Brennan Center.

“The judges during the closing argument seemed genuinely concerned that a broad ruling on public carry would drag them into all sorts of detail about where guns may be banned – campuses, subways, Times Square on the evening of the New Years, etc.”, he said. explaining how complicated it would be for federal district court judges to oversee and decide where guns should be banned in their jurisdictions.

But, Miller said, the power of conservative politics in this case cannot be ruled out. “That said, there is a conservative super-majority on the Court that is clearly ready to flex its muscles on issues that conservatives have long cared about – restrictions on abortion, free exercise, gun rights firearms – so I can’t rule out a broad and largely disruptive decision that would not only upend New York’s regulations, but challenge the constitutionality of nearly all gun regulations, in every state, at every level of government.

Leave a Reply

Your email address will not be published.