Top Constitutional Lawyers Explain What the Second Amendment Really Says About Gun Control

ByJake Miller

In the wake of the shooting in San Bernardino, California, prominent conservative politicians have again squashed momentum to step up gun regulation, using the Second Amendment to make their case for maintaining the status quo.

The day after the shooting, Republican presidential candidate and Texas Sen. Ted Cruz predicted that the shootings would lead to renewed calls for gun control.  

"The goal of both President Obama and Hillary Clinton is to consistently — at every turn — weaken the constitutional rights of American citizens," he told Breitbart News in an interview. "In particular, to undermine our constitutional right to keep and bear arms."

Similarly, at the beginning of President Barack Obama's recent address to the nation from the Oval Office, Republican frontrunner Donald Trump tweeted: "Hope he won't spend too much time ripping apart the 2nd Amendment!" Carly Fiorina responded to Obama's speech similarly, saying, "I get really frustrated when I hear Barack Obama ... trample on our constitution and starts talking about taking away our Second Amendment rights."

This kind of absolutism on gun laws is nothing new. Conservatives have spent years making the case that any form of increased gun control is an affront to Americans' constitutional rights as provided by the Second Amendment.

"There will be no compromise," Wayne LaPierre, CEO and executive vice president of the National Rifle Association, declared in a speech to the United Nations in 2012. "American gun owners will never surrender our Second Amendment freedom. Period."

Mic spoke with several top constitutional lawyers who reject outright the notion that the Second Amendment prohibits increased limitations on access to guns. Instead, they argue that the Constitution actually allows for a number of gun regulations which have been proposed in Congress, including universal background checks and bans on assault weapons.

While it may come as a surprise to today's conservative politicians, even today's Supreme Court has interpreted the Second Amendment to allow for these types of reforms.

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The background: The current debate over gun control has its roots in the very founding of the United States, when the Second Amendment was included in the Bill of Rights: "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."

For almost 200 years after it was adopted, the Second Amendment was interpreted to protect the right for militias to bear arms, but not individuals. In 1939, the Supreme Court ruled in United States v. Miller that restricting access to shotguns or machine guns by citizens outside the military was permissible.

"The right to bear arms was thought to ensure well-regulated state militias," Harvard constitutional law professor Richard J. Fallon told Mic. "Regulation of firearms was permissible as long as it did not interfere with state militias."

Historically, conservatives actually tended to support gun control, seeing it as a way to stop crime. That changed in the 1970s, when conservatives began to make the argument that the Second Amendments protects individuals, rather than just the military.

"The country grew more conservative, but the predominant brand became self-reliance," Fallon told Mic. "It was in this political and cultural climate that the National Rifle Association started to argue the position that the right to bear arms for hunting and individual self-defense was regulated by the Second Amendment."

The most important recent Supreme Court decision dealing with gun regulation came in 2008, when the court ruled in the case District of Columbia v. Heller. At issue was the constitutionality of the District's ban on handguns, which at the time was one of the most restrictive in the country. In a 5-4 decision, the court struck down the ban, claiming it infringed on an individual right, namely "the right of the people to keep and bear arms." However, the court also explicitly stated that while owning handguns is protected as an individual right, possession of "dangerous and unusual weapons" is not.

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Despite that distinction, conservative politicians have argued that the Heller ruling does not permit any change to current federal gun laws. For example, in 2013, shortly after the Sandy Hook massacre, Cruz vehemently opposed a bill to regulate high-capacity ammunition and assault weapons.

"The Second Amendment exists to ensure that law-abiding Americans can protect their homes and families, and I look forward to helping lead the fight to defeat this bill and to protect our constitutional right to keep and bear arms," he said at the time.

Leading Republicans have also criticized reforms to close what many consider loopholes in background check process for gun purchasers. Two weeks ago, for example, 49 Republican senators voted against a failed bill that would have expanded background checks and closed the so-called gun show loophole, with Florida Sen. Marco Rubio stating that such an expansion "would impede the Second Amendment right of a large number of Americans."

What these politicians get wrong: Those absolutist positions were never supported by the Supreme Court's Heller ruling, which was intentionally narrow.

"Heller set out sort of a bare-bones holding that there is a constitutionally protected right to bear arms, but most of the hard questions have not yet been considered by the Supreme Court," Fallon told Mic. "Although the Supreme Court has recognized a Second Amendment right to bear arms, it has not recognized an absolute right of everybody to bear arms, of all kinds, at all places, in all circumstances."

Other constitutional lawyers go even further, saying that although conservatives may not want to admit it, Heller actually paved the way for more gun control restrictions.

"I believe 'assault weapons' are indeed what the court had in mind when it wrote in Heller about 'dangerous and unusual weapons," Harvard Law professor and renowned legal scholar Laurence Tribe told Mic. "I believe military-style assault weapons will never be protected by the court in the name of the Second Amendment."

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Tribe also believes expanded background checks are constitutional and do not violate the Second Amendment.

"Computerized background checks obviously lack direct historical analogues, but laws that permit them may be the only practical way to keep guns away from felons and the mentally ill, Tribe wrote in his 2014 book Uncertain Justice: The Roberts Court and the Constitution. "Under Heller, then, they should unquestionably be deemed constitutional."

Progress is possible: The only thing the Supreme Court has absolutely ruled out, according to Tribe, is a large-scale government seizure of all guns, a fear conservatives have heavily perpetuated. Trump recently told a crowd in South Carolina that he had heard Obama was considering an executive order "to take your guns away." That could never actually happen, even if the president or Congress wanted to do it, so long as the Second Amendment exists.

Short of that, Tribe is clear that the Second Amendment does not stand in the way of gun legislation to make the country safer.

"The largest misconception is that the Second Amendment justifies — or ever has justified — our nation's abysmal record in protecting innocent people from avoidable gun violence," Tribe told Mic. "The Second Amendment and the Constitution as a whole are abused by those who treat them as a sick suicide pact."

So while there is a legitimate political debate to be had about the merits of gun control, Tribe says conservatives are wrong to make it a constitutional issue.

"The obstacles to the needed degree of protection are partly technological, and mostly psychological and cultural and thus political, rather than constitutional," he said.