An American Amendment

In the aftermath of the Parkland shooting, as with almost every incident of mass gun-related violence, the issue of gun control has arisen for heated discussion. Pundits, politicians, and social media users all demand action, be it a ban of bump stocks or the strengthening of background checks before the sale of a gun. Inevitably, gun owners or members of interest groups such as the National Rifle Association (NRA) respond in kind. Their defense: some form of  Second Amendment argument.

As many bumper stickers, lawn signs, flags, and t-shirts will attest, to many citizens the Second Amendment is as American as apple pie. The right of the people to “a well-regulated militia,” as well as that “to keep and bear arms,” provokes passionate rhetoric in a way that, for example, the Third Amendment never has. My Facebook news feed has never witnessed ferocious arguments between former classmates about the unlawful quartering of soldiers in peacetime.

Proponents of gun control measures, it seems, not only have gun owners to reckon with, but also must face what many people consider one of the shining stars of the Bill of Rights, a feature of the modern American identity.

In the wake of the Sandy Hook school shooting in 2012, Jeffrey Toobin reported in the New Yorker on the NRA’s relatively recent adoption of the Second Amendment as a weapon in the American gun debate. Not until 1977, he wrote, did the NRA leadership begin an uphill battle to establish that the Second Amendment protects the rights of the individual, not just the militia, to bear arms. “The re-interpretation of the Second Amendment,” according to Toobin, “was an elaborate and brilliantly executed political operation.”

Many conservatives embrace constitutional originalism, yet the use of the Second Amendment to oppose gun control actually represents an evolution of constitutional interpretation. The Supreme Court supported this reinterpretation in 2008 when it ruled that the Second Amendment protected the individual’s right to bear arms in District of Columbia v. Heller, striking down the city’s ban on handguns. Reva Siegel, the Nicholas deB. Katzenbach Professor of Law at Yale Law School, has written extensively on how this case, in particular, is in a tradition of “social movement conflict” following Brown v. Board of Education. Although it claims to proceed from originalism, the Heller decision actually participates in the “culture war” which Justice Scalia spoke of in his Lawrence v. Texas dissenting opinion.

In fact, the Second Amendment was the least-debated provision of the Bill of Rights in Congress. According to Michael Waldman in his book The Second Amendment, no congressman actually mentioned the private ownership of guns for any purpose other than joining a militia when it considered the Bill of Rights amendments.

Gun law reform will always encounter fierce resistance, so long as the NRA successfully maintains this popular conception of the Second Amendment as protecting an individual rather than a collective (and limited) right. In the minds of many gun supporters, how can angry liberals even conceive of destroying such an eternal and fundamental pillar of American democracy and culture?

It may take advocates of gun control laws as many years to change this view of the Second Amendment as it took the NRA to establish the amendment in popular American imagination as the ultimate defense of the right to own guns. No matter how many children die in school, this debate will still rage on, because an attack on guns appears to gun control opponents to be an attack on the American way of life.

The Second Amendment and the right of an individual to own guns are two distinct ideas. Importantly, though, they both belong to the pantheon of values that for many people constitute “What it means to be an American.” Further, they are seen as one and the same. If the sale of guns in America is to be reduced, owning a gun must be made less American.