In the wake of the Parkland school shooting, the Second Amendment looms over us like a giant pillar of fire. It is inspiring to some and frightening to others.
At February’s CNN town hall on guns, a teacher from Marjory Stoneman Douglas High School brought it up, asking an NRA official to define the “well regulated Militia” the amendment cites and to explain how the accused killer was part of it. Conservative New York Times columnist Bret Stephens called for repealing the amendment. Later in February, the NRA’s Wayne LaPierre said opponents want “to eliminate the Second Amendment and our firearms freedoms so they can eradicate all individual freedoms.”
But the attention to the Second Amendment is misplaced. What neither side in the gun debate seems to realize is that at the moment, when it comes to the sort of restrictions that lie within the zone of possibility, the Second Amendment is neither an obstacle nor a protection. It’s an irrelevance.
Federal laws regulating guns have been around for a long time, including age requirements for gun owners, a prohibition on felons and a mandatory background check for purchases from a licensed dealer.
These rules predated the Supreme Court’s momentous 2008 decision striking down the District of Columbia’s complete ban on handguns. It was the first time the court had ever ruled that a gun control statute violated the Second Amendment. The court said individuals have the right to own guns for self-defense, a right not limited to those serving in a militia.
The decision might have been the death knell of every firearms restriction on the books — which could be regarded as an infringement on “the right of the people to keep and bear Arms.”
That is not how things have worked out. In concluding that Americans have the right to keep guns in the home for self-defense, the court was careful not to categorically reject all regulation.
Justice Antonin Scalia noted that the decision “should not 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.” The District of Columbia still has the power to enact “some measures regulating handguns,” he added.
In the intervening years, the court has chosen not to undertake a wholesale dismantling of gun laws. Just the other day, it declined to hear a lawsuit challenging California’s 10-day waiting period for the purchase of any gun — over the protest of Justice Clarence Thomas, who accused his colleagues of making the Second Amendment “a disfavored right.”
Another way to put it is that they are not convinced that this or other regulations violate the fundamental liberty enshrined in the amendment — any more than a noise restriction in a residential neighborhood or a ban on highway billboards violates the First Amendment.
A variety of proposals have been offered in response to the Parkland carnage: a ban on “assault weapons,” a limit on magazine capacity, a higher age minimum for handgun purchases, requiring federal background checks for private sales, making it easier to take guns away from people with mental disturbances or domestic violence convictions, and improving mental health reporting for background checks.
There is no reason to think the Supreme Court would strike down any of these, much less all of them. Four federal appeals courts have upheld laws against “assault weapons.” Why? In accepting a ban enacted by Highland Park, Illinois, the 7th U.S. Circuit Court of Appeals said that by forbidding only one type of gun, the city “leaves residents with many self-defense options.” The justices have felt no need to disavow the decisions.
Maybe they will rule on such measures eventually. But where they would come down is pure speculation. For the time being, the Second Amendment should be factored out of the dispute over how to prevent mass shootings or other gun crime.
The gun control supporters who want to repeal it are wasting their time because they won’t succeed and don’t need to. The gun rights supporters should stop pretending that it’s in danger or that it will save them. The pertinent argument is political, not constitutional.
For better or worse, new restrictions can come about only through legislation. For better or worse, the Second Amendment doesn’t stand in the way.
Chapman writes for the Chicago Tribune as well as being syndicated columnist.