Why a repeal of the 2nd Amendment would not be enough to stop gun violence

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A man walks past a memorial on Aug. 7, 2019, for those killed in a mass shooting in Dayton, Ohio, four days earlier. Three U.S. bishops' committee chairmen issued a statement Aug. 8 to call on the nation's elected officials "to exert leadership in seeking to heal the wounds" of the country caused by the Aug. 3 and 4 mass shootings and urged an end to hateful rhetoric many see as a factor in the violence particularly in Texas. The Aug. 3 shooting in El Paso, Texas, was followed less than 24 hours later by the mass shooting in Dayton Aug. 4. (CNS photo/Bryan Woolston, Reuters)

Since America called for a repeal of the Second Amendment in 2013, accidental and intentional deaths from guns in the United States have increased from 80 to 100 per day. The only significant change in federal law since 2013 is the bump stock ban regulation promulgated by the administration of President Trump. The regulation went into effect in March 2019, but it is under a legal challenge as an overreach of executive power. Many states have passed effective gun control laws, and states with the highest death rates from guns are those with the most lenient laws. Unlike other nations that prohibit or narrowly restrict ownership of high-body-count weaponry and ammunition, the United States is hindered in establishing effective gun control by federal and state constitutional roadblocks. Understanding these roadblocks is essential to devising a route around them. The Second Amendment states: “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 2008, a one-justice majority of the Supreme Court (District of Columbia v. Heller), which included Chief Justice Roberts, determined that the phrase “a well regulated Militia, being necessary to the security of a free state” is “prefatory” language that does not restrict gun rights to members of government-sponsored militias. In 2010, the high court (McDonald v. Chicago) held that the Second Amendment restricts both federal and state regulation of gun ownership and usage. The Heller decision acknowledged that “the right secured by the Second Amendment is not unlimited,” but the question remains, “[u]nder what framework should Second Amendment challenges be evaluated?” Unlike other nations that prohibit or narrowly restrict ownership of high-body-count weaponry and ammunition, the United States is hindered in establishing effective gun control by federal and state constitutional roadblocks. Legal scholars are concerned that the five Republican-appointed justices on the Supreme Court will liberally construe the Second Amendment to thwart legislative and regulatory efforts to prevent gun-related deaths. Nevertheless, as of this writing, there is no congressional proposal to repeal the Second Amendment, and the Hawaiian state legislature is alone in urging Congress to consider its repeal. But even the highly improbable repeal of the Second Amendment is not enough to guarantee laws designed to restrict gun deaths. Congress and/or state legislatures would need to pass those laws. The balance of powers created by the U.S. Constitution gives supremacy to federal action undertaken in accordance with specifically enumerated powers and “all laws which shall be necessary and proper” to those powers but reserves all other authority to the states and the people. Federal laws must have the “requisite nexus” to their constitutional underpinnings or the courts will not enforce them. Current federal gun laws are based on either Congress’s power to tax or its power to regulate interstate commerce. The National Firearms Act, which regulates gun sales through taxation, was upheld by the Supreme Court in 1937, but it has recently come under attack by those who argue that changes in the law have severed its required nexus to the collection of revenue. In June, the Supreme Court declined to hear one such challenge, but other cases may arise in the future. In 1995 (United States v. Lopez), the Supreme Court struck down the federal Gun-Free School Zones Act, which was enacted pursuant to the commerce clause, ruling that the law’s prohibition of gun possession in a school zone had no relationship to economic activity. Since that ruling, Congress has rewritten the law to prohibit only gun possession that “affects” or has a “concrete tie” to interstate commerce. The courts have interpreted those phrases broadly to cover any activity with economic impact. Nevertheless, several states, such as Arizona and Kansas, have tried to limit the impact of commerce clause gun laws by passing Second Amendment Protection Acts that purportedly make federal laws inapplicable to guns manufactured and sold solely within these states. These efforts have not been upheld by the courts, but a future pro-states’ rights Supreme Court might determine the Constitution requires recognition of these state laws over Congress’s broad use of its commerce clause powers. Currently, all but six state constitutions include some gun rights provision and one of those six, Iowa, is in the process of adding a constitutional amendment to protect the right to bear arms.

The authority of the states to enact gun laws is written into the 10th Amendment. This general police power is shared with local (county, city and town) governments by virtue of the authority granted to them by their state constitutions. Currently, all but six state constitutions include some gun rights provision and one of those six, Iowa, is in the process of adding a constitutional amendment to protect the right to bear arms. These provisions limit the ability of state legislatures and local authorities to enact gun controls and could provide a basis for judges to block enforcement of existing federal restrictions. In sum, there are two judicial threats to effective gun control—an expansion of Second Amendment rights and a retraction of federal legislative powers. A simple repeal of the Second Amendment cures the first problem but not the second because the Supreme Court would still be free to reinterpret Congress’s taxation and commerce clause powers so as to strike down federal gun laws.

The clearest avenue toward sound legal protection for gun regulation is a new constitutional provision that specifically authorizes federal gun laws, but the best wording for such an authorization is not as clear. The late Justice John Paul Stevens’s 2014 proposal to add five words—“when serving in the Militia”—to the Second Amendment is not sufficient. His proposal cures the gun control problems created by the Supreme Court’s Heller and McDonald decisions but does not guarantee supremacy of federal law over state constitutional gun rights. Filmmaker and social activist Michael Moore has suggested a rewriting that recognizes limited gun rights and the right to be free from gun violence, but his wording is unnecessarily cumbersome: “A well regulated State National Guard, being helpful to the safety and security of a State in times of need, along with the strictly regulated right of the people to keep and bear a limited number of non-automatic Arms for sport and hunting, with respect to the primary right of all people to be free from gun violence, this shall not be infringed.” A more workable revision was suggested in 2013 by Zachary Elkins, director of the Comparative Constitutions Project. In an opinion piece titled “Rewrite the Second Amendment,” Mr. Elkins suggested a restatement indicating that the Constitution guarantees the “right to bear arms, subject to reasonable regulations protecting public safety.” This rewriting, according to Mr. Elkins, articulates “a basic consensus that would let both sides claim victory. The alternative is more violent rhetoric—and more deadly violence.” Laws alone do not stop violence, but voters and lawmakers must make common-sense legislative and constitutional changes that will save lives. As Thomas Jefferson wrote to Thomas Paine, the author of “Common Sense,” “Go on then in doing with your pen what in other times was done with the sword.”