By Adam Orford
12/10/2015

Immediate full disclosure: I want to live in a society that prohibits – or at a minimum severely curtails – the private ownership of firearms. To justify this on a basis other than personal preference, I might say that this reflects my conclusion that our society’s collective welfare would increase, were most guns prohibited, even taking into account the harm, real and perceived, imposed upon people who own guns and do not want to give them up, and the social conflict and long-term ill will that imposing such a prohibition on unwilling people would engender and entail.

But if I want to prohibit private gun ownership in the United States (which I do) and I also respect the rule of law (which I do), I must admit that the legal hurdles set in my path are extraordinarily high.

Constitutional Amendment Required
Anyone advocating for a legal prohibition on firearms in the United States – whether at the local, state, or national level – must understand that such a ban would almost certainly require the repeal of the Second Amendment. As of 2008, this was not entirely clear, but the Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), has forced the conclusion.

The Supreme Court’s decision in Heller arose from a challenge to the District of Columbia’s functional prohibition on handguns, and requirement that any firearm kept in a home be unloaded and disassembled or bound with a trigger lock. In striking down these laws, the Supreme Court examined the Second Amendment in detail for the first time since its addition to the federal Constitution in 1792. In an opinion written by Justice Scalia, the Court concluded that the Second Amendment guaranteed an individual right to possess weapons in ordinary use for traditional purposes, including self-defense and protection of one’s home, and that in the modern United States such weapons include long guns and handguns. Laws prohibiting ordinary citizens from possessing such weapons, or from accessing them for their traditional purposes, are unconstitutional.

There is a whole subcategory of legal academic literature discussing whether Heller really changed anything related to gun control in the United States. The decision allows for reasonable regulation of firearms, and specifically presumes that most existing restrictions are reasonable. But in one way, Heller changed everything: by uncoupling the right to bear arms from militia service and extending it to defense of self and home, the conservative Court foreclosed the possibility of banning the possession of most common firearms in most common situations. Unless the decision is overturned – which, although not impossible, is extremely unlikely in the next several decades – the only way to move toward a gun ban is the repeal of the Second Amendment.

I will leave it for the reader to ponder the political feasibility of such a repeal. The purpose of the U.S. Constitution is to create and preserve a stable government, and consequently the Framers made changing it extraordinarily difficult. The easy way requires two-thirds majority approval by both the House and Senate, followed by ratification by three-fourths of the States (today, 38 of 50).

Second Amendment as Policy
The analysis should not end with political feasibility. Where policy is about advocating for the kind of world we want to live in, the law, including Constitutional statements of law, serves to document the policy decisions that society has already made. The Second Amendment, then, is an example of the power – and, if you disagree with the policy, the danger – of elevating policy decisions to the level of Constitutional declarations of individual rights.  That statement applies equally to me in the case of guns, as to those who disapprove of the world created byRoe v. Wade. It is one of the hallmarks of the Roberts court that it has adopted the language of civil rights to support conservative social causes. The same system and principles that can produce Obergefell can produce Citizens United.

In Heller, Justice Scalia stated that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table,” and, he argues, by specifically speaking on gun ownership, the Second Amendment “is the very product of an interest-balancing by the people.” This is debatable, but if so, Scalia has also identified the real issue: “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.” Too true.

If we are truly shackled by an interest-balancing made 223 years ago, in a different world, with different interests, we should ask ourselves whether that makes any sense. If the answer is “no,” then even the difficult path toward repeal should not be abandoned out of hand.

Adam Orford is an attorney and MPP Candidate at the Goldman School of Public Policy.