Gun Control: A Constitutional Mandate

By Derek Willie

Derek Willie is a freshman at the University of Pennsylvania.

When something threatens the safety of Americans, the government always responds quickly, sometimes even wantonly, to the threat. The most prominent twenty-first century example of this is undoubtedly the USA PATRIOT Act, passed just two months after the attacks of September 11, 2001. [1] More than eighty percent of the House of Representatives endorsed the measure despite widespread reservations about the law’s constitutionality. [2] It seems reasonable then to assume that the federal government would pursue some sort of action to curb gun violence, which killed ten times more people in 2001 than 9/11 and other attacks branded as terrorism. In fact, more Americans were slaughtered by Adam Lanza at Newtown in 2012 than by all of the terrorist acts of 2013 combined. [3] Nevertheless, Congress has done nothing to prevent gun violence, even in the wake of so many mass shootings.
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Some lawmakers, whom many consider beholden to the National Rifle Association (NRA), balk at any attempt to institute more gun safety laws, claiming that the Second Amendment forbids further gun regulation. Yet how can the same lawmakers who supported a partly unconstitutional law as an effort to keep Americans safe oppose gun laws serving the same purpose, whose constitutionality still remains disputed? It thus becomes our objective to discern whether these constitutional objections are valid or whether they are merely talking points of an uncompromising gun lobby.

To begin our analysis, we must fully understand the text of the Second Amendment. It declares: “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.” [4] It is important to note that even as the amendment explicitly establishes the right to bear arms, it does so with a qualifying statement preceding the actual delineation of the right. The qualifier appears to have some functional importance beyond its justificatory, contextual purpose, for no other amendment of the Bill of Rights contains such an addendum. [5] It seems fair, then, to interpret the qualifier as prescriptive, tailoring the amendment to a very specific purpose of protecting the right of a well-regulated, armed militia to exist. In his 2008 dissent in D.C. v. Heller, Justice John Paul Stevens argued that the Second Amendment really only established the right of a well-established militia to be armed, excluding individual citizens:

Although those in the current political debate rarely use Stevens’ argument as constitutional justification for gun control, hebrilliantly elucidates the intent of the Second Amendment: to provide average citizens with the means of deposing a tyrannical force via a well-regulated militia or army of civilians. When we put such a motive in historical context, the Second Amendment takes on a completely different connotation. That said, today our democracy is evidently so well-established that it is virtually impossible to imagine the manifestation of autocratic tyranny and the modern necessity of a militia.

For the moment, let us concede that the right of the constituents of a militia to keep and bear arms applies to the general populace, and that every “law-abiding” gun owner constitutes a member of that militia. While this is a rather nonsensical approach, especially considering that the concept of an American militia is unequivocally antiquated, one could reasonably follow this line of reasoning. Even with that premise, we must acknowledge, as Adam Gopnik observes in The New Yorker, “If the Founders hadn’t wanted guns to be regulated, and thoroughly, they would not have put the phrase ‘well regulated’ in the amendment.” [7] If we apply this reading to the Second Amendment,, governmental regulation of firearms are not only constitutionally permitted, but encouraged. Still, despite Gopnik’s simple yet brilliant logic, one could argue that this modern conception of a militia ought to be regulated by the people rather than the government. However, to think that millions of gun-owners across the United States could unite to regulate themselves is to think the absurd. No other entity can perform the regulation specifically prescribed by the Second Amendment better than the federal and state governments. If men were angels we could trust each individual to regulate him or herself , but, as James Madison observed in Federalist No. 51, and judging from the inordinate amount of gun violence occurring over the last decade, that seems like a faulty proposition.  I should clarify my reasoning with the disclaimer that my argument applies solely to the constitutional aspect of gun control. Nonetheless, it seems like the only other consideration in evaluating gun control laws would be over their efficacy, an issue on which the NRA can win only if it discounts just about every relevant study conducted [8].
Thus, in the 2008 DC v. Heller decision, we witnessed the birth of a new constitutional right for gun owners in the US, one that the founding fathers did not include in the constitution and whose implications were unforeseeable.  Now, with mass shootings occurring on average every 64 days since 2011,  those implications are finally coming to light. [9]
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[1] "FINAL VOTE RESULTS FOR ROLL CALL 398." Accessed October 10, 2015. http://clerk.house.gov/evs/2001/roll398.xml.
[2] "Judge Rules Part of Patriot Act Unconstitutional." Msnbc.com. September 27, 2007. Accessed October 10, 2015. http://www.nbcnews.com/id/20999950/ns/us_news-security/t/judge-rules-part-patriot-act-unconstitutional/#.VhgscCQ-Cu4.
[3] Jones, Julia, and Eve Bower. "American Deaths in Terrorism vs. Gun Violence - CNN.com." CNN. October 2, 2015. Accessed October 10, 2015. http://www.cnn.com/2015/10/02/us/oregon-shooting-terrorism-gun-violence/.
[4] "Bill of Rights - Bill of Rights Institute." Bill of Rights Institute. Accessed October 10, 2015. http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/.
[5] Ibid.
[6] Stevens, John Paul. "DISTRICT OF COLUMBIA v. HELLER." DISTRICT OF COLUMBIA v. HELLER. March 18, 2008. Accessed October 10, 2015. https://www.law.cornell.edu/supct/html/07-290.ZD.html.
[7] Gopnik, Adam. "The Second Amendment Is a Gun-Control Amendment - The New Yorker." The New Yorker. October 2, 2015. Accessed October 10, 2015. http://www.newyorker.com/news/news-desk/the-second-amendment-is-a-gun-control-amendment?mbid=social_facebook.
[8] Isenstein, Libby. "The States With The Most Gun Laws See The Fewest Gun-Related Deaths." National Journal. August 28, 2015. Accessed October 10, 2015. http://www.nationaljournal.com/s/53345/states-with-most-gun-laws-see-fewest-gun-related-deaths.
[9] Follman, Mark. "Yes, Mass Shootings Are Occurring More Often-a Lot More Often." Mother Jones. October 21, 2014. Accessed October 10, 2015. http://www.motherjones.com/politics/2014/10/mass-shootings-rising-harvard.

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