Why the Second Amendment Argument Against Gun Control is Still Undefeated

Mass shootings are now so predictable that you are perfectly familiar with the 48-hour news cycle that follows each one. Sirens fill the screen, and the accompanying BREAKING NEWS headlines earn a font size commensurate to the body count. Law enforcement “sources” promise an update “soon.” This is not fast enough. Impatient nuggets of information break on Twitter. Most of them prove to be very, very wrong. Finally: a beleaguered, unshaven police chief holds a press conference. He announces the goods news (relatively speaking): the perpetrator has been captured or killed. Finally, fear subsides, even as the death toll rises.

Next come the reactions. The president says something about it. Everyone who wants to be president says something about it. On the next day’s morning shows, the calls for reform start: we need more thorough background checks, and better restrictions on firearms available for sale, and better mental healthcare for people who need it. And then, almost immediately, these suggestions are flatly rejected by the comprehensive, unimpeachable two-word counterargument that somehow conclusively rebuts any and all arguments for policy solutions: Second Amendment, man. (Three words, I guess). So far, without fail, that argument carries the day. At least until tomorrow’s shooting, and the cycle starts again.

Particularly when considered in light of the carefully explained context in which it is presented (that is, none) and the nuance and subtlety with which the argument is made (ditto), the Second Amendment argument’s winning streak is pretty remarkable. No constitutional right is absolute. But when it comes to guns, no matter how frequent or how horrific the violence, this concept seems to not apply. Why is the Second Amendment such a powerful, unassailable argument that buries sensible policy reform before it even starts? What makes the the right to own a firearm, out of all the many protections that the Bill of Rights affords, so dependably sacrosanct?

I count four reasons.

  1. The times, they have a-changed. The Bill of Rights is really, really old! Lots of rights now mean very different things than they did when then-Secretary of State Thomas Jefferson certified their adoption way back when. Unfortunately, most of them LESS today, not more. Think about freedom of speech. In theory, this allows everyone the opportunity to express their ideas and opinions, no matter how unpopular or controversial (or dumb). But they also have to compete with 349,999,999 other Americans who also want to exercise the same right. Practically speaking, freedom of speech means little on a day-to-day basis to people who lack power and/or a forum in which to share their ideas. Those people are as free as ever to express their thoughts. But when no one is there to listen, to appreciate your exercise of your right, it becomes harder to remember that that right was ever important in the first place.
  1. Wait, why is this thing important? The Bill of Rights manages to be maddeningly vague on very important issues—like “what is speech,” a question that lawyers and law students have spent millions of hours studying and debating only to arrive at the same “it depends” answer as always—while remaining hilariously specific others that you don’t care about in the least. Remember, the Bill of Rights was enacted at a time when a few Royal policies that the colonies absolutely hated were fresh in the drafters’ minds. As a result, some of the rights it guarantees are far too archaic to appreciate anymore. For example, if you were required to allow members of the military to stay in your house, at any time, without warning, you would probably object to this as a SLIGHT GOVERNMENT OVERREACH. The good news is that the Third Amendment expressly protects you from this scenario! But it’s also true that the possibility of being forced to house soldiers is so far removed from the scope of things from which you, in 2015, really need protection. When the threat is no longer real, the importance of preserving the right at all costs understandably diminishes.
  1. Wait, that’s all this one does? The Bill of Rights limits the power of the federal government, and no one else. If you tell your boss that Donald Trump is a sentient pile of excrement, and said boss is a staunch Republican who fires you on the spot, you are objectively right and are a good person. But your free speech rights have not been violated. On the other hand, if you publish a flyer stating that Donald Trump is a bizarro-world crypto-fascist whose election almost certainly signals the downfall of Western Civilization, the Bill of Rights does protect you from arrest (upon the order of President Trump, probably). But which form of suppression happens more often today?  After 200 years, the government has gotten pretty good at allowing people to speak their minds; it is no longer the day-to-day threat to suppress ideas that the colonists feared. When the would-be perpetrator has learned to stay in its lane, the right to protection from that perpetrator is a little easier to forget.
  1. Wait, I have the right to THAT? Lastly, lots of people (fortunately!) never get to exercise some of their most important constitutional rights. Since you have access to basic cable and have been at home on a Saturday afternoon with nothing to do at least once in your life, you know that if you are accused of a crime, you are entitled to a trial by jury and a free lawyer. These are two really important rights that work together to prevent the government from convicting people of crimes and throwing them in jail willy-nilly. This is a historically remarkable degree of self-imposed transparency and limitations on sovereign power. That said…lots of people don’t break the law are never caught breaking the law! And good for them. But it’s easy to see why rights seem less important to the many people for whom those rights are effectively dormant, embedded in a system with which they never come into meaningful contact during their lives.

The Second Amendment persists in its simplicity, its relevance, and its insistent argumentative strength because it suffers from none of these burdens.

Two centuries of technology and change have rendered some rights less meaningful today than they were in 1792. Not so with guns. Owning one is as easy as ever. And exercising that right neither presumes nor requires a forum or an audience. The Second Amendment is egalitarian. It confers the exact same amount of power on the poorest Americans as it does on the wealthiest. It is still the only right you can hold in your hand.

Other rights are archaic relics of British colonial rule. The Second Amendment may be a relic, but it is not archaic. The Crown sought to limit  guns in the eighteenth century just as the federal government would do in the twenty-first. Of course, the Crown was worried (with good reason) about preempting armed rebellion, while today’s government just wants people to be murdered in the street less often, so the analogy is not perfect. But the fact pattern is the same: government is still the threat, so the Second Amendment’s clear, simple language is still the best defense.

Similarly, two centuries of relatively stable society have rendered the importance of the Bill of Rights’ protections against the government a bit less salient to daily life. Internet commenters, not police officers, are the greatest threat to free speech. But when it comes to the Second Amendment, the party from which we need protection is still the government. It, not anyone or anything else, is the party that would limit gun ownership. Thus, the Second Amendment remains relevant because it protects a right to do something that the government would probably prohibit in modern society. It is the only thing that realistically stands in the way of what would otherwise be considered common-sense reform.

Every other constitutional right is subject to meaningful qualifiers and balancing tests. But incremental, vagary-laden restrictions on freedom of speech or carved-out limitations on due process (hello, Guantanamo Bay!) are hard to understand. Guns are easy. It at first seems bizarre how consistently judges have refused to uphold even the most basic of qualifiers on the right to gun ownership (trigger locks, handgun registration requirements). But in the face of such comparatively clear language on such a simple topic, these results make sense: it is difficult to read gun control laws in any way other than as facial violations of the individual right to firearm ownership that the Supreme Court reads in the Second Amendment (whether you buy that reading, of course, is a topic for another day)

The meaning of all constitutional rights evolves—except, thus far, the Second Amendment’s. The tricky task ahead for those of us who are tired of mass shootings du jour is to show reform opponents that subjecting guns to simple balancing tests and common-sense qualifiers—like those applied to literally every other right—is going to be OK. I have no idea how to do that. But understanding why the Second Amendment argument still carries such force is an important first step to someday, hopefully, defeating it.

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