Following the inspirational lead of the Parkland students crusading for sensible gun regulation, Washington, DC students staged a die-in today in front of the White House, demanding action.
The Parkland activists have called for large demonstrations on March 24, and other groups have announced student walk-outs to demand regulation for safe schools.
As activism on this issue will develop over the coming months, I want to use this post to address some fundamental issues in gun politics that won’t necessarily fit into posts that address the day to day about current debates.
- The battle over guns in the United States really extends a half century, at least, to the Gun Control Act of 1968, which began as a response to the assassination of John F. Kennedy. (Yes, you’re right, that was in 1963; gun legislation takes a long time.) In the wake of the 1968 assassinations of Martin Luther King and Robert F. Kennedy, Congress passed a bill that banned mail order purchase of some weapons, and prohibited felons and people judged mentally ill from possessing weapons. The National Rifle Association supported it.
- The National Rifle Association was not always so fundamentalist, nor has it always opposed federal regulation of firearms.Ambrose Burnside (at right), a union general in the Civil War, started the group after the war’s end, in response to the poor shooting and safety skills demonstrated by soldiers during the war. Founded in 1871, the NRA focused on teaching marksmanship and gun safety. Its core constituency was comprised of sport shooters and hunters. The group didn’t routinely oppose regulations on guns until after the passage of the 1968 Gun Control Act.
- The NRA supported that Act, officially, but some members were disappointed about the restrictions the government imposed. Over the next few years, a revolt within the organization led to a more aggressive anti-regulation group that focused increasingly on the political process. The group also shifted its focus from sports shooting to the use of weapons for self-defense.
- The second amendment to the US Constitution reads: “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.” Amateurs and legal scholars have argued vociferously about what those words mean, and relationship of those two clauses to each other, and to the contemporary regulation of guns in America.
- No state or federal regulation of firearms was struck down by the Supreme Court for violating the Constitution until District of Columbia v. Heller (1968).
- Heller, decided 5-4, was the first time the Court found that the Second Amendment provided an individual right to bear arms for self-defense. The ruling struck down a DC law that prohibited the possession of unregistered handguns, while simultaneously refusing to allow most citizens to register guns. A departure from previous jurisprudence, it was a controversial decision.
- Written by Justice Antonin Scalia, Heller provided the most expansive decision on the Second Amendment to date. Justice Scalia described the right to keep and bear arms as fundamental, and analogous to the First Amendment right to free speech.
- Justice Scalia was clear that the right to keep and bear arms, like the right to free speech, was subject to reasonable restrictions for the public good. He wrote:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose….. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues….Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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.
Heller clearly allows states and the federal government to regulate the sorts of weapons available, the people who might (or might not) be allowed to possess them, and the conditions under which guns are bought and sold.
I think the decision is important for activists on both sides of the issue. According to Heller the Second Amendment does not block all regulation of guns or gun owners. It’s therefore a mistake to allow it to dominate the debates about public safety and personal freedom. It’s also a mistake for advocates of regulation to focus on repealing the Second Amendment, as New York Times columnist, Bret Stephens has argued. Such efforts are extremely time-consuming, distracting, and unlikely to be successful. Jurisprudence on the Second Amendment continues to develop, but presently Justice Scalia’s opinion allows government substantial flexibility in crafting sensible regulation of firearms.