What If We Didn’t... have the Second Amendment?


“What If We Didn’t...?” is part of a new series from Mic — read more here.

In a March 27 op-ed, John Paul Stevens controversially called for the repeal of the Second Amendment. In the New York Times editorial, the retired Supreme Court justice argued that doing so would eliminate the legality of selling firearms in the United States.

“It would make our schoolchildren safer than they have been since 2008 and honor the memories of the many, indeed far too many, victims of recent gun violence,” Stevens wrote.

Few issues in the U.S. social and political climate are as pressing as gun violence. From the dozens killed every day in routine violence and the tens of thousands who commit suicide with firearms each year, to the mass shootings that have left a trail of dead Americans in schools, churches, movie theaters and concert venues, this is clearly a crisis. It’s also an issue that has proved frustratingly difficult to move the needle on, with calls for commonsense gun control legislation going unheralded, even after high-profile massacres.

Amid the ongoing dilemma, the mass shooting in February at Marjory Stoneman Douglas High School in Parkland, Florida, seems to have now touched off a new and more energetic push for gun control — led, this time, by teenage survivors of the shooting. These teens, thrust into the spotlight in the aftermath of the shooting, have pushed for commonsense gun laws and gone after the National Rifle Association while directly confronting politicians who accept money from the powerful gun lobby.

Stevens argued the teens should go further — while the Parkland teens have repeatedly said repealing the Second Amendment isn’t part of their agenda, he wrote that he believes doing so would bring them “closer to their objective than any other possible reform.”

But is he right? Would repealing the right to bear arms amount to a “more effective and more lasting reform?” What if we never had the Second Amendment in the first place?

How the NRA hijacked the Second Amendment

Matt Rourke/AP

The early days of the republic provide some insight into these questions.

In 1787, the Constitutional Convention, recognizing that militias of citizens acting as part-time soldiers would not be a sufficient national defense, authorized the U.S. government to establish a standing army — even during times of peace. But anti-Federalists, wary of the power such a military gave the federal government, wanted individual states to be able to protect themselves from an oppressive central government.

As a compromise, James Madison put forth what would become the Second Amendment of the U.S. 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.”

At the time, it was a kind of assurance from the federal government to the states that, although it would be establishing a standing military, that government wouldn’t disarm the militias that anti-Federalists saw as a check on tyranny.

This, however, wasn’t much of a concession to the radical anti-Federalists, according to Saul Cornell, the Paul and Diane Guenther chair of American History at Fordham University. In an interview with Mic, Cornell said that the Second Amendment was not a particularly important legal concept for much of its existence — especially in the years before the Civil War, when the federal government wasn’t nearly as active as it is by today’s standards.

“It had some cultural function” at the time, Cornell said, “but not necessarily much legal function.”

So how did the Second Amendment come to cast such a huge shadow over the modern gun debate?

That began with the rise of the gun lobby, which mounted a long campaign to shift opinions on the amendment, both in the court of public opinion and within the courts of law. The stage for a newly powerful NRA was set by a confluence of factors in the middle of the 20th century, from racial tension and paranoia about communism in the 1960s to Watergate-era distrust of federal power.

Until the mid-1970s, the NRA had been devoted to hunting and marksmanship. It was in May 1977 that a group of radical guns rights proponents hijacked the its annual meeting in Cincinnati and set the NRA on a path toward becoming the powerful lobbying outfit we know today. During that meeting, pro-gun zealots ousted the organization’s more moderate leadership in a coup and replaced them with hardliners, who vowed a no-compromise approach to any and all gun control legislation.

In the decades since the “Revolt at Cincinnati,” the NRA has had a stranglehold on the U.S. gun debate. And the Second Amendment has been their weapon, according to Jonathan Lowy, vice president of the Legal Action Project at the Brady Center to Prevent Gun Violence.

“The NRA has been extremely effective in telling the American people that they have a God-given right to a gun, and that this right is extremely broad,” Lowy said in an interview with Mic. “As a talking point, [the Second Amendment] has made a huge difference, because the NRA has been able to put a tremendous amount of money into misrepresenting what it means.”

Though polls show a majority of Americans support stricter gun laws, they also suggest that most Americans hold favorable views of the NRA. Over the past few decades, the organization has exerted a great deal of influence over the Republican Party, donating extensively to conservative politicians — including President Donald Trump — who, in turn, have stood in the way of gun control legislation. The organization has also been successful in framing any attempts at regulation as a violation of individual freedoms.

“The NRA manipulates its base by relying on a handful of rhetorical tricks,” Igor Volsky, founder and director of Guns Down, a gun control advocacy group founded in 2016, said in an interview with Mic. “It always portrays its members as victims of a secret conspiracy orchestrated by the government, liberals, Hollywood elites and the press to disarm God-loving, hardworking Americans in order to undermine their culture and take all of their power.”

An America that never had the Second Amendment?

Without the Second Amendment, gun rights advocates might not have had such a strong rhetorical tool for shutting down conversations about gun control.

“They can say, ‘Well, I’m just protecting our constitutional rights,” Lowy said.

As former Chief Justice Warren Burger, a staunch conservative, remarked in 1991, the amendment had been “the subject of one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special-interest groups that I have ever seen in my lifetime.”

“If I were writing the Bill of Rights now,” he said, “there wouldn’t be any such thing as the Second Amendment.”

Still, until relatively recently the text of the amendment wasn’t much of a legal factor. That changed with the Supreme Court’s District of Columbia v. Heller decision in 2008 and its McDonald v. Chicago decision in 2010.

In Heller, the Supreme Court ruled 5-4 that Washington, D.C.’s ban on handguns and requirement that guns be stored locked or unloaded and disassembled was unconstitutional, with the majority arguing that the Second Amendment protects an individual’s right to possess weapons — regardless of whether they’re in a militia or not. The decision asserted that the decades-old D.C. gun laws violated an individual’s right to self-protection, marking what is considered a significant shift in the court’s interpretation of the Second Amendment.

An emboldened NRA framed the decision as a win for the organization, but also said that it was “just the beginning” of its fight against “regulations and restrictions.”

“The recent Supreme Court decision reinforces our efforts and creates new opportunities to continue strengthening NRA,” the fall 2008 edition of the NRA Recruiter read. “American gun owners must understand that the fight is far from over and must remain vigilant by standing strong with the NRA.”

Two years later, in McDonald — another 5-4 decision — the Supreme Court ruled that Chicago’s restrictive gun laws, including a handgun ban, were unconstitutional. The decision established a legal precedent that the Second Amendment would be protected at all levels of government based on the due process clause of the Fourteenth Amendment.

The pair of landmark decisions expanded the reach and legal relevance of the Second Amendment, establishing that an individual’s right to gun ownership is protected by law. The decisions were, no doubt, a decades-in-the-making victory for the NRA — a win in the court of law, and in the court of public opinion.

In 1959, a Gallup poll showed 60% of Americans believed in an outright ban on handguns. But by the time Heller rolled around, that number was around 30%. And according to a 2008 Gallup poll, nearly three-quarters of Americans held the same view as the Supreme Court — that the Second Amendment protects individuals’ rights to own guns, not just members of state militias.

The NRA’s long campaign to twist the Second Amendment to their own ends succeeded — and maybe even led to the nation’s high court redefining its scope.

“I personally think [the NRA’s] misrepresentation is one of the factors that led to the Heller decision,” Lowy said.

But had the Second Amendment never existed, as Burger said he wished, the role the NRA plays in American culture and politics would likely be much more muted, and opinions about rights to gun ownership in the U.S. would likely still favor heavier restrictions.

America’s unique gun culture

Keith Srakocic/AP

The gun has long played a significant role in the American story, rooted in the U.S. frontier myth and adapted for new generations in everything from John Wayne films to the Jason Bourne franchise.

“It is the meta-narrative of American popular culture,” Cornell said. “[Other cultures] don’t invest their guns with these crazy emotional meanings.”

With guns so ingrained in the American identity, it’s unsurprising that the country has a higher rate of gun ownership per capita than any other nation. One of just three countries to put the right to bear arms in its constitution — the others are Mexico and Guatemala — the United States, according to a 2007 study, possesses as many as half of the world’s civilian-owned guns.

This isn’t to say that people don’t have guns in other countries. Indeed, guns are part of everyday life for people in many nations where the right to bear arms isn’t constitutionally mandated.

However, nations like Australia, Germany and the United Kingdom have changed their gun laws — sometimes dramatically — following high-profile incidents of gun violence. Australia, for instance, famously strengthened its gun laws and introduced a buyback program for certain weapons following a mass shooting in 1996 that killed 35 people; Australia has not seen a single mass shooting since, according to researchers quoted in an NBC News report.

The United Kingdom has also enacted strict firearms controls following a 1996 mass shooting that killed 16 children at a primary school; as a result, the government would eventually enact a handgun ban with significant public support, and there’s been one mass shooting there since, according to CNN.

The United States, by contrast, routinely endures mass shootings — including the one in Parkland, which left 17 dead. Since Parkland, there have been many mass shootings that are scarcely nationally reported. And then there’s the everyday gun violence that plagues cities like Chicago and New Orleans.

Of course, other countries have violence and murders. So would repealing the Second Amendment today necessarily change the murder or homicide rate in the U.S.?

Frequently, in countries outside the U.S., violence is committed using knives — not guns; in London in February and March of 2018, a spike in knife crime has contributed to more murders occurring in the British capital than there were in New York, according to the BBC.

Gun rights advocates often claim that guns are just tools and shouldn’t be blamed. But firearms — handguns, in particular — account for a vast majority of American homicides each year, killing far more people than knives, blunt objects and personal weapons like fists and feet combined, according to homicide data from the FBI. And, according to a 2011 study by the United Nations Office on Drugs and Crime, data suggests that there is a correlation between gun availability and violent crime.

That seems to be reflected in the number of gun homicides the U.S. sees every day compared with other wealthy countries. While you’re as likely to die by gun violence as you are via car accident in the United States, the New York Times observed in 2016, the likelihood of being shot to death in places like Japan and England is equivalent to an American’s chance of being struck by lightning or having an accident with agricultural equipment, respectively. And that doesn’t even account for suicides, which make up the majority of gun deaths in the U.S. to the tune of more than 20,000 a year.

Stevens argued in March that repealing the Second Amendment would go a long way toward fixing the problem, writing that doing so would “eliminate the only legal rule that protects sellers of firearms in the United States — unlike every other market in the world.”

So, what about an America without the Second Amendment? According to Lowy, our gun culture may not look that much different from a legal standpoint. But as a talking point for gun rights advocates, particularly in recent years, it has made a “huge difference.”

“The gun lobby likes to wrap itself around the flag and the Constitution,” Lowy said. “Because they’ve done that, they’re able to sort of add some veneer of respectability to political positions that should be outrageous.”

A Second Amendment repeal could, perhaps, strip that veneer away.

“It’s not necessary, and it’s a distraction”

Allison Shelley/Getty Images

Still, both Cornell and Lowy, whose group promotes gun control, dismissed the call for repeal as not only impossible, but unnecessary.

“It’s not going to happen,” Cornell said. “It’s not necessary, and it’s a distraction.”

Though the gun lobby and its supporters use the Second Amendment as a talking point, Lowy believes it doesn’t stand in the way of commonsense regulation — even under the broader interpretation of it ushered in by Heller.

“All of the reasonable gun policies that we need in this country are permissible under the Heller decision,” Lowy said. “I very strongly disagree with the notion that you need to repeal the Second Amendment to enact sensible gun laws. [The Second Amendment] isn’t the problem. The problem is weak-kneed politicians who go along with what the gun lobby wants.”

The NRA Institute for Legislative Action suggested the amendment still protects the “right of a free people to defend that freedom and to protect their families and communities from threats,” and frames any attempt at gun regulation as a violation of an individual’s constitutional rights. Further, it contends that gun control legislation only restricts “honest citizens who respect the law,” and points to cities with high crime rates but strong gun laws, like Chicago, as evidence of the inefficacy of gun control.

“Gun control has been tested,” according to the NRA Institute for Legislative Action, “and it has failed the test.”

But, as Cornell said in an interview with Mic, the words “well regulated” appear in the very text of the amendment — regulation, in other words, was always a part of it.

“A regulation is not an infringement,” Cornell said. “[The founders] viewed regulation as the foundation of liberty.”

So, should the Second Amendment be repealed?

Andrew Harnik/AP

What America might look like if the Second Amendment never existed is difficult to determine.

On the one hand, gun culture flourished in the U.S. for decades — even when the Second Amendment was interpreted entirely as a collective right, not an individual one. On the other, it’s possible the gun lobby wouldn’t have gotten such a stranglehold on the issue if they never had the Second Amendment to hide behind.

But what is clear is that eliminating the Second Amendment now would be extremely difficult to accomplish politically — and calling to do so could serve to distract from the message the Parkland survivors and their supporters have rallied for after the shooting. The NRA has already attempted to link the teens’ movement to Stevens’ “radical idea” of repealing the amendment.

But the Parkland activists have explicitly said their movement is not an attack on the Second Amendment, but rather an effort to enact commonsense gun regulations.

Repealing the Second Amendment wouldn’t fix America’s gun problem. There were still a lot of guns in the U.S. before Heller, when there was “no meaningful Second Amendment right protecting them,” according to Cornell. And, as the Economist observed in February, it is “impossible to say whether erasing the Second Amendment would bring down gun deaths in America.”

It’s not the Second Amendment itself, but the powerful gun lobby that has stood in the way of sensible gun laws, according to Lowy. Even under Heller and McDonald, he added, reforms like stronger background checks and limits on magazine size would be possible.

So while Stevens envisions an America without the Second Amendment, Lowy entertains a different hypothetical world, in which the NRA never became a lobbying outfit for the gun industry and stuck to its original mission of promoting marksmanship.

“I get a lump in my throat thinking about it,” Lowy said. “There’s literally millions of Americans who would not have been shot and many hundreds and hundreds of thousands who would not have been killed if the NRA had been doing what it should’ve been doing all these years.”