Opponents of these views, such as Handgun Control, Inc., and the Coalition to Stop Gun Violence, counter with several arguments of their own. First, they say that none of the claims of gun rights advocates has anything to do with the Second Amendment, which refers only to the use and ownership of guns by state militia members. Their second argument is that countries with stricter gun control laws have less violence and fewer gun deaths. Third, they argue that none of the rights of Americans, even such fundamental ones as freedom of speech and the press, is absolute. Finally, they point to the irony in claiming the protection of the Constitution to own weapons that could be used to overthrow the government based on that Constitution.61
Legislation and Judicial Decisions
Although various kinds of gun control legislation have been passed at the state and local levels, powerful interest groups like the NRA have kept it to a minimum at the federal level. The 1990s, however, saw the passage of three federal bills that affect the right to bear arms: the 1993 Brady Bill, requiring background checks on potential handgun purchasers; the 1994 Crime Bill, barring semiautomatic assault weapons; and a 1995 bill making it illegal to carry a gun near a school. The 1995 law and the interim provisions of the Brady Bill, which imposed a five-day waiting period for all gun sales, with local background checks until a national background check system could be established, were struck down by the Supreme Court on the grounds that they were unconstitutional infringements of the national government into the realm of state power.62 In September 2004, Congress let the ban on semiautomatic weapons expire. While some Democrats in Congress promised to reintroduce the ban, action proved impossible because the powerful NRA has framed the conversation around guns in terms of rights. The narrative they have persuaded most Americans to believe is that the Second Amendment unequivocally guarantees all Americans the right to own guns (when even a cursory reading disputes that) and that any limitation on that right is an assault on the Constitution and the beginning of the slippery slope to the end of American liberty. Business Insider says the NRA is “a juggernaut of influence in Washington” because it is simultaneously “a lobbying firm, a campaign operation, a popular social club, a generous benefactor and an industry group.”63 By industry group, the author means that the NRA not only represents gun owners but that much of its financial and political clout comes from gun manufacturers who stand to make considerable money when people feel their guns or lives are threatened. In part, its strength also comes from its members, not because they are a majority of Americans, but because they are an intense minority, passionately unwilling to tolerate any compromise in the protection of what they believe is an essential right.
That has made the NRA one of the most powerful forces in the United States. From one gun massacre to the next—whether at a movie theater, at a shopping mall, or, increasingly, inside a school—rhetoric favoring gun regulation has bloomed and then . . . nothing happens. The NRA and its spokespeople argue that the issue is mental health, not guns, and that more guns, not fewer, are necessary to stop gun violence.
Between the Sandy Hook shootings in 2012 and the Marjory Stoneman Douglas shootings in 2018, more than four hundred additional people were killed in more than two hundred school shootings.64 The Parkland, Florida, deaths added seventeen to that total. As we saw in What’s at Stake . . . ? in Chapter 1, the students from Parkland created a much more effective counternarrative in response to the NRA: “Why is your right to a gun more important than my right to life?” By the numbers of voluntary surrenders of AR-15s following the shootings at MSD, it was clear that this was a narrative that resonated even among some assault weapon enthusiasts. Unfortunately, it did not resonate quickly enough to save lives. Narratives take time to change and the NRA has lots of money and power behind it. In 2018, many Democratic members were elected to Congress who do not owe the NRA but they cannot pass legislation by themselves. Mass shootings (defined as four or more deaths, not counting the shooter’s) have been occurring almost weekly since Parkland. In fact, the 2018 midterm election on Nov. 6 was bookended by a massacre killing eleven people at worship in a Pittsburgh synagogue on October 27 and a shooting at a bar in Thousand Oaks, California, that killed twelve on November 7.
Until 2008 the Supreme Court had ruled on only a handful of cases that had an impact on gun rights and the Second Amendment, mostly interpreting the Second Amendment as intending to arm state militias, and letting state gun-related legislation stand.65 In 2008, however, the Supreme Court heard arguments for the first time since 1939 on whether the Constitution guarantees an individual the right to bear arms. In a five-to-four decision, the Court held that it did, striking down a Washington, D.C., law that banned handgun possession in the home. While the Court held that the D.C. law violated an individual’s right to own a gun for self-protection, the majority was careful to say that the right to own guns is not unlimited. For instance, it does not encompass military-grade weapons, and it does not extend to felons and the mentally ill.66 In 2010 the Court took the ruling a step further, holding that not only could the federal government not violate an individual’s right to bear arms, as it had in the D.C. case, but neither could a state government.67 Writing for the Court in a five-to-four decision, Justice Samuel Alito said, “It is clear that the Framers . . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”68 Further cases will determine exactly what the parameters of this interpretation are—which state laws violate the right and which do not—but gun rights advocates are hoping to see it applied broadly, as evidenced by the Virginia law, passed just days after the Supreme Court ruling, that allows bar patrons to carry concealed weapons as long as they are not drinking.69
In Your Own Words
Give examples of different interpretations of the Second Amendment’s meaning.
The Rights of Criminal Defendants: Protecting the accused from an arbitrary government
Half of the amendments in the Bill of Rights and several clauses in the Constitution itself are devoted to protecting the rights of people who are suspected or accused of committing crimes. The Fourth through Eighth Amendments protect people against unreasonable searches and seizures, self-incrimination, and cruel and unusual punishment, and they guarantee people accused of a crime the right to legal advice, the right to a speedy and public trial, and various other procedural protections.
Why Are the Rights of Criminal Defendants Valuable?
A primary reason for protecting the rights of the accused is to limit government power. One way governments can stop criticism of their actions is by eliminating the opposition, imprisoning them, or worse. The guarantees in the Bill of Rights provide checks on government’s ability to prosecute its enemies.
Another reason for guaranteeing rights to those accused of crimes is the strong tradition in American culture, coming from our English roots, that a person is innocent until proven guilty. An innocent person, naturally, still has the full protection of the Constitution, and even a guilty person is protected to some degree, for instance, against cruel and unusual punishment. All Americans are entitled to what the Fifth and Fourteenth Amendments call due process of the law, which means that laws must be reasonable and fair, and that those accused of breaking the law—and who stand to lose life, liberty, or property as a consequence—have the right to appear before their judges to hear the charges