The “Second Amendment,” more than a right, has become a rhetorical device. It’s a counterargument in two words, a rallying cry designed to end debate.
Want to restrict firearms, or regulate their sale, or limit which kinds Americans can buy? Meet the Second Amendment, the simplest rebuttal goes.
It creates the unfettered right to own guns in America. Full stop.
This claim — prominent among gun-rights advocates — implies that the Second Amendment establishes not just a right to own guns, but a right that the government cannot legally limit.
The problem with this argument: None of our rights work this way.
“The Supreme Court has said repeatedly that no right under the Constitution is absolute,” says Adam Winkler, a law professor at UCLA and the author of “Gunfight: The Battle over the Right to Bear Arms in America. “In general, where the government has very strong reasons to restrict a right, it can.”
Take the First Amendment right to free speech, which sounds pretty ironclad (“Congress shall make no law... abridging the freedom of speech”). In the most famous example of what Winkler is talking about, the Supreme Court has said the First Amendment doesn’t protect your right to shout “fire!” in a crowded theater that is not, in fact, on fire.
You can’t say whatever you want, wherever you want, in other words, if what you want to say might cause a riot endangering public safety. Also, about those air-tight free-speech rights: You can’t just libel people willy-nilly, or incite murder, or leak government secrets, or distribute child pornography, or say certain words on TV, or pass out political pamphlets wherever you want. And that’s just one right contained in the First Amendment. “Just pick your right,” Winkler says.
The Fourth Amendment says you have a right to be free from unreasonable searches and seizures. But you still have to go through security at airports. You can still be stopped at a drunk-driving checkpoint. Your right to private property? The government can still take it from you under eminent domain. Your right to freedom of religion? That doesn’t mean a government clerk can deny same-sex couples marriage licenses, or that a baker can refuse to sell those couples wedding cakes. You have a right to be free from racial discrimination. But, for example, if a race riot breaks out in a state prison, the government can separate inmates by race to try to quell the violence.
“Same thing with gun rights,” Winkler says. “We already restrict access to firearms in many ways. We prohibit people from owning machine guns. We prohibit people from owning shoulder-launched missiles and hand grenades. We prohibit felons and the mentally ill from possessing firearms. We prevent children from owning firearms.”
Just Monday morning, the Supreme Court declined to review local laws that prohibit certain kinds of weapons like semiautomatic guns. Those laws draw limits around the right to bear arms.
The Second Amendment in effect is no more absolute than any of our other rights, and yet a vocal camp in our public debates often describes it that way.
“We see a lot more absolutist rhetoric today than we did in the past,” Winkler says, “partly because we have over the last 40 years seen the rise of a rather extreme pro-gun movement, led by the NRA.”
We can still argue about semiautomatic weapons bans and universal background checks and whether such policies would curb gun violence. But citing “the Second Amendment!” by itself in those debates isn’t a valid argument for shutting them down.