By Cass Sunstein
Bloomberg View
The use of the Second Amendment, to block consideration of sensible gun control measures, is a national disgrace. And conservatives themselves have explained why this is true.
For decades, conservatives have objected to the use of constitutional provisions as a political weapon, insisting that controversies should be resolved in democratic arenas instead. They have made this argument to oppose judicial recognition of the right to choose abortion; protection of same-sex marriage; creation of a rigid “wall” between church and state; and creation of new rights in the criminal justice system. Going even further, they have argued against the left’s efforts to use the Constitution to block reasonable political debates — about religion, about privacy, about equality — that the justices have never settled.
Bracket the question whether these arguments are always convincing. At a minimum, conservatives are right to raise the question whether the Constitution really does stop We the People, acting through our elected representatives, from addressing serious social problems in accordance with our values and our best judgments about the facts.
Turn in this light to the Second Amendment, which 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.” Historians have long debated whether the Second Amendment provides any protection, at all, for the individual right to own guns. There are reasonable arguments both ways.
For most of the 20th century, the firm consensus among federal judges — Republican or Democratic — was that it did not provide that protection.
It was not until 2008 that the Supreme Court ruled that it did. The justices were badly divided. Four members of the court agreed with the longstanding consensus. The majority opinion, joined by five justices, ruled that the Second Amendment does create an individual right of gun ownership. But the opinion, written by Justice Antonin Scalia, was modest and cautious.
Justice Scalia’s opinion did not come close to embracing the arguments made by those who invoke the Second Amendment as an all-purpose weapon against democratic efforts to prevent the murder of high-school kids. On the contrary, his opinion is full of permission slips for federal, state and local governments to act.
In a crucial sentence, Justice Scalia wrote, “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.”
Justice Scalia also emphasized that the Second Amendment is restricted to weapons “in common use at the time.” He added that the Constitution leaves government with many tools for combating the problem of handgun violence, including regulation.
After the court’s decision, lower courts have upheld numerous restrictions on the sale and ownership of guns. On dozens of occasions, the justices have declined to review such rulings, suggesting that they accept Justice Scalia’s permission slips.
It is true the precise meaning of the Second Amendment has yet to be settled. But no one can doubt the central point: There is a profound disconnect between the actual meaning of the Second Amendment, as it is understood by courts, and political uses of the Second Amendment, as it is invoked in federal and state legislatures, and as a basis for attacking politicians who are thinking in good faith about how best to save lives.
Here’s another way to put it. Many people claim to oppose sensible gun-control reforms on the ground that they “are for the Second Amendment.” But everyone should be for the Second Amendment. The question is not whether to favor or oppose the Second Amendment, but which reforms, now acceptable under that amendment, should be enacted into law.
We the People are entitled to ask and answer that question — free from the would-be censorship of those who pound tables and purport to speak for the Second Amendment, but who actually have not the slightest interest in the Constitution of the United States.
Cass Sunstein is a Bloomberg View columnist.
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