It’s not the Constitution
Seventeen young people were killed and many more wounded at Marjory Stoneman Douglas High School on Wednesday in Parkland, Fla. “No child, teacher or anyone else should ever feel unsafe in an American school,” tweeted President Trump, a sentiment we can surely all share. But it also rings hollow. It’s a safe bet that Congress will again fail to do anything to stop or even mitigate these mass killings.
The United States is an outlier in its number of mass shootings at least in part because it’s an outlier in terms of gun policy. Nikolas Cruz, the alleged killer, was armed with an AR-15 semiautomatic rifle. This weapon has been used in many recent mass killings, including Stephen Paddock’s murder of 58 people in Las Vegas last October. In other advanced countries, semiautomatic rifles such as the AR-15 are illegal.
Why is gun control policy in the United States so lax? One common response is to point to the Constitution. Certainly, many opponents of gun control argue that virtually any regulation of firearms that goes beyond the weak federal status quo violates the 2nd Amendment’s guarantee of the “right to bear arms.” But the Constitution is not the primary reason why the United States permits civilians to arm themselves like soldiers.
The Supreme Court, after all, has only interpreted the Constitution as protecting an
individual right to bear arms since 2008. And the court’s decision in D.C. vs. Heller left a much wider scope for gun control than is commonly recognized. In his majority opinion, the late Justice Antonin Scalia wrote that “the right secured by the 2nd Amendment is not unlimited” and that the 2nd Amendment does not prevent the state from banning “dangerous and unusual weapons.”
On its face, a federal ban on semiautomatic weapons would be constitutional even under Heller.
Admittedly, what constitutes a “dangerous and unusual” weapon is not precisely defined by Scalia’s opinion. It’s possible that the current Supreme Court would read it narrowly and strike down a state or federal ban on semiautomatic weapons. But even if this turned out to be the case, this is a contingency, not some permanent feature of American constitutionalism compelled by the text of the 2nd Amendment. Any Supreme Court with a Democratic median vote would uphold such a ban.
If it’s not the Constitution that stops the United States from passing stronger gun control measures, what is it? To put it simply, politics and culture.
The relatively recent radicalization of the National Rifle Assn. and its capture of the Republican Party makes even modest gun control measures impossible at the federal level and in most states. And while public opinion supports most specific gun control measures, including bans on assault-style weapons, opponents of gun control tend to be better mobilized and organized.
At the national level, there’s an additional structural problem, which is that both houses of Congress overrepresent rural jurisdictions where support for gun control is relatively weak and opposition is particularly intense.
So while major federal gun control legislation is a complete nonstarter when Republicans control the White House and/or either house, even a unified Democratic government would face an uphill climb. The median votes in both Houses will almost always come from places where casting a crucial vote for gun control measures might end a politician’s career. And, needless to say, the skewed anti-urban representation of Congress and the electoral college make unified Democratic governments less likely in the first place.
Although the short-term prospects for major federal gun control are bleak, supporters shouldn’t give up the longerterm struggle. The Constitution does not forbid a ban on semiautomatic weapons or other gun control measures that could attenuate this horrible violence. The NRA’s hold on the political class is not inevitable.
Sensible gun-control measures, common to other countries, would not eliminate mass killings, but they would reduce them, while making those that do occur less deadly. And Americans can achieve them without violating the 2nd Amendment.
The 2nd Amendment is not the primary reason why the United States permits civilians to arm themselves like soldiers.