After yet another gun-related tragedy, the U.S. is in the midst of a flurry of new efforts to control people’s access to firearms. As before, those efforts are running into serious trouble. The major problem is simple: The Second Amendment has come to be seen as a constitutional barrier, and perhaps even more, a political one.
Somewhat awkwardly, presidential candidate Ben Carson captured a widespread view: “I never saw a body with bullet holes that was more devastating than taking the right to arm ourselves away.”
No one should take away people’s rights. But with respect to “the right to arm ourselves,” we have lost sight of our own history.
A quick quiz: In what century did the Supreme Court first rule that people have an individual right to own guns? The answer is the 21st century. It was not until 2008 — the year Barack Obama was elected president — that the court initially ruled that the Constitution imposes serious barriers to gun control. And it did so only by a narrow 5-4 margin.
To understand the magnitude of that change, go back to 1991, when Chief Justice Warren Burger agreed to an interview on national television. Burger was a strong conservative, admired on the right, and chosen specifically by President Richard Nixon to combat what he saw as the Supreme Court’s left-wing activism.
Despite his conservative bona fides, Burger didn’t believe the Constitution created an individual right to possess guns. On the contrary, he said the Second Amendment “has 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.” In the next year, he proclaimed that “the Second Amendment doesn’t guarantee the right to have firearms at all.”
Burger was speaking for the overwhelming majority of lawyers and judges. The Second Amendment reads: “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.” In Burger’s view, the opening reference to a “well regulated Militia” suggests that the Second Amendment was meant to forbid the national government from abolishing state militias.
That view, which contrasts so sharply with the current interpretation, has a long history. In 1840, the Tennessee Supreme Court captured a widespread understanding in announcing that the real object of the right to keep and bear arms “is the defense of the public” and so refers to “military use.” It follows that a hunter “might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms.”
In the 20th century, the Supreme Court’s principal ruling came in 1939. In rejecting a challenge to the National Firearms Act of 1934, which banned possession of sawed-off shotguns, the court unanimously ruled that the ban didn’t violate the Second Amendment.
The amendment’s “obvious purpose” was “to assure the continuation and render possible the effectiveness of” the militia, the court ruled, and its “declaration and guarantee must be interpreted and applied with that end in view.” Nothing about banning sawed-off shotguns interfered with a militia.
For many decades, almost all lower federal courts rejected the conclusion that the Second Amendment protects an individual right. In recent years, what has happened? Part of the answer is that exceptionally well-organized, well-funded, and determined interest groups — above all the National Rifle Association — embarked on an extraordinary campaign to convince the public, and eventually the courts, to understand the Second Amendment in their preferred way.
The campaign resonated with the public, and with widespread cultural values in many areas of the nation. It could also be used strategically by politicians seeking votes. In a short period, the NRA’s central claim about the Second Amendment — denounced as fraud by a conservative chief justice just 24 years ago — came to command a majority on the Supreme Court.
An important qualification: The text of the Second Amendment is ambiguous, and it could indeed be read in favor of an individual right; historians continue to debate the question. And because the individual right to own guns has long been a central part of American culture, if not its jurisprudence, federal judges might well hesitate before entirely denying that right.
Fortunately, the Supreme Court has given strong signals that the right is subject to reasonable restrictions, such as background checks and registration requirements (of the sort recently proposed by Hillary Clinton). But even when the Second Amendment is not a serious legal obstacle to those reforms, it operates as a political rallying cry, intimidating elected officials and making it seem as if gun-control advocates are defying our founding document.
Don’t believe it. Today’s uses of the Second Amendment may invoke James Madison and Alexander Hamilton, but they have a lot more to do with interest-group politics.
Cass Sunstein, a Bloomberg View columnist, is director of the Harvard Law School’s program on behavioral economics and public policy.