The Second Amendment: An Evolving Piece of the Constitution by Chelsea Caveny

The Second Amendment: An Evolving Piece of the Constitution

by

Chelsea Caveny

As of Friday, October 2nd, there had been 994 mass shootings in America in the last 1,004 days.[1] I am writing this piece on Saturday, October 10th, and I am sure that the number of mass shootings is already higher.[2] By the time this piece is published online, the number will be higher still. In President Obama’s response after the recent shooting at Umpqua Community College in Roseburg, Oregon he referenced the numbness and routine now felt by the American people towards mass shootings.[3]

If we expand the number of gun deaths beyond just the statistics surrounding “mass” shootings, again the numbers become stark and troubling. In the opinion section of the New York Times, Nicolas Kristof wrote that 92 people in America die from gun violence, every single day.[4] When you include gun deaths of all types (suicide, murders and accidents) that number grows to 1.45 million deaths since the 1970s.[5] Kristof uses the 1970s as a point of demarcation for his statistics. Why is that? Kristof doesn’t expand on this in his piece (which largely focuses on ways that guns can be made safer, similar to ways we regulate cars). What Kristof does reference, and a reference that is almost always present when we talk about ways to reduce these staggering numbers, is the NRA.

After every mass shooting, the policy talk inevitably becomes how we address gun control.  On one side, talks of stricter background checks and tracking of guns, on the other side the defense of gun ownership under the 2nd amendment. The debate almost always includes a reference to the power, whether good or bad, of the NRA. In his address after the Oregon shooting, President Obama made a loosely guised reference to the power of the NRA when he encouraged Americans who safely own guns to question whether their interests are being properly represented by a national organization.[6]

In 2012, Jeffrey Toobin wrote an article in the New Yorker that connected the 1970s, the NRA, and our modern interpretation of the 2nd Amendment.[7] Toobin argues that for nearly a hundred years the 2nd Amendment was interpreted narrowly and in line with the original drafting, which gave militias the right to bear arms, not individuals. It wasn’t until 2008 that the Supreme Court espoused what has become our modern understanding of 2nd Amendment protection. According to Toobin, the Supreme Court decision in Heller in 2008 didn’t happen overnight.[8] In 1977, a new group of politically conservative leaders took over the NRA and made the plan for a more active, deliberate organization. Not long after Reagan, a pro-gun rights conservative, took the White House. Orrin Hatch of Utah commissioned a report that painted the long jurisprudential interpretation of the 2nd Amendment as incorrect, and the NRA began producing similar research. Ultimately, as Toobin writes, “an outré constitutional theory, rejected even by the establishment of the Republican Party, evolved, through brute political force, into the conservative conventional wisdom.”[9]

The work of the NRA and conservative politicians that started in the 1970s, came to fruition in 2008 with the Supreme Court’s decision in Heller, a decision ruling a DC handgun ban unconstitutional.[10] One of the leading scholars on what the Heller decision represented in a larger context is Reva Siegel at Yale.[11] Siegel writes that the “Court had interpreted the Second Amendment in accordance with the convictions of the twentieth century gun-rights movement and so had demonstrated the ascendancy of the living Constitution.”[12] And there in lies one of the most interesting contradictions in American politics. Justice Scalia, long seen as the archetype and protector of original constitutional interpretation[13], wrote an opinion in Heller that had to re-imagine the constitution in line with more modern gun principals. As Siegel writes, “Heller‘s account of the Second Amendment’s original public meaning invokes authorities from before and after the founding, relies on common law-like reasoning, endows judges with vast amounts of interpretive discretion, and, in these respects, resembles the practice of living constitutionalism that Justice Scalia often condemns.”[14]

When writing about this in 2012, Toobin’s point was that no law is ever settled, not even our understanding of the 2nd Amendment, nor is any interpretation ever done in a vacuum void of modern politics. Yet, our modern policy debates over gun control seem void of any idea that the 2nd Amendment has evolved or could ever evolve even more. The shootings continue to grow, and people continue to die. Yet, gun control efforts have been stagnant. Maybe a place to start the conservation is by challenging the notion of an infallible 2nd amendment?

Yet, maybe it is that very notion that continues to stop the debate from turning into policy changes. The idea that the 2nd Amendment could change yet again is likely a scary thought for conservative gun owners. Whether justified or not, there seems to be a real fear among conservative Americans that the Obama White House is going to go from door to door and collect every firearm, whether legally or illegally owned.[15] In making that point, The Atlantic argued that while supporters of moderate gun control might find that entrenched belief absurd, the belief at least has to be acknowledged before gun control measures can be addressed.[16]

Whatever belief system one might hold, we seem to be reaching a tipping point and for sensible reforms (like gun tracking and safety lock mechanisms suggested by Kristof in the New York Times) to be enacted, it seems that both sides will have to acknowledge that this debate is as much a policy one, as it is a constitutional one.

[1] See 994 Mass Shootings in 1,004 Days: This is What America’s Gun Crisis Looks Like, The Guardian, Oct. 2nd, 2015, http://www.theguardian.com/us-news/ng-interactive/2015/oct/02/mass-shootings-america-gun-violence, (mass shootings are defined by an event where more than 4 people are shot in a single incident).

[2] See Sarah Kaplan, Four Delta Chi Fraternity Members Shot-One Fatally-At Northern Arizona University, Washington Post, Oct. 9, 2015, http://www.washingtonpost.com/news/morning-mix/wp/2015/10/09/one-dead-3-injured-in-shooting-at-northern-arizona-university/.

[3] See Gardiner Harris and Michael D. Shear, Obama Condemns ‘Routine’ of Mass Shootings, Says U.S. Has Become Numb, N.Y. Times, Oct. 1, 2015, http://www.nytimes.com/2015/10/02/us/obama-oregon-shooting-umpqua-community-college-gun-control.html?_r=0.

[4] Nicholas Kristof, Opinion, A New Way to Tackle Gun Deaths, N.Y. Times, Oct. 3, 2015, http://www.nytimes.com/2015/10/04/opinion/sunday/nicholas-kristof-a-new-way-to-tackle-gun-deaths.html?smid=tw-nytopinion&smtyp=cur&_r=0.

[5] Id.

[6] See Harris, supra.

[7] See Jeffrey Toobin, So You Think You Know the Second Amendment?, The New Yorker, Dec. 17, 2012, http://www.newyorker.com/news/daily-comment/so-you-think-you-know-the-second-amendment.

[8] Id.

[9] Id.

[10] See District of Columbia v. Heller, 554 U.S. 570, (2008); Toobin, supra.

[11] See Reva Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008).

[12] Id. at 192.

[13] See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 854 (1989); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation 3, 38 (Amy Gutmann ed., 1997).

[14] Siegel, supra at 196.

[15] See David Graham, Why Conservatives Mistrust Even Modest Efforts at Gun Control, The Atlantic, Oct. 2, 2015, http://www.theatlantic.com/politics/archive/2015/10/conservatives-gun-control-and-distrust/408643/.

[16] Id.

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