More recently, the Supreme Court in DC v. Heller (2008) – a case in which the Supreme Court upheld gun rights – also held that while the Second Amendment did protect one’s right to possess a firearm outside the context of service in a militia, “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Thus, the Court held that while a total ban on handguns was in violation of the Second Amendment, less expansive limits would be within reason. And while the Court famously struck down the Guns-Free School Zones Act in US v. Lopez on the grounds that its relationship to interstate commerce was too attenuated, it would be within Congress’s right under the Spending Clause to condition federal funding on compliance with guns-free school zones, especially with respect to assault weapons. Nor would a nation-wide assault weapons ban, background checks, and prohibitions of domestic abusers from having guns be out of accord with the Second Amendment or with the Heller holding.
Such a reading is wholly consistent with our treatment of other constitutional amendments. We do not have blanket protections for freedom of speech, which is why in Miller v. California, the Supreme Court established that obscenity is not a class of communication that is deserving of First Amendment protection. It is why in Brandenburg v. Ohio, the Supreme Court established that while speech can enjoy First Amendment protection while advocating for illegal activities, it is not protected if it is “directed at inciting or producing imminent lawless action” and is likely to produce that illegal action. And it is why in Chaplinsky v. New Hampshire, the Supreme Court held that certain fighting words can fall outside the scope of speech that is protected under the First Amendment.
Some conservatives have sought limits on the scope of the Establishment Clause by encouraging the availability of school vouchers that may be used in a religious school. The first clause of the First Amendment, “Congress shall make no law respecting an establishment of religion” would seem at first blush to preclude federal dollars to going toward a religious institution. The Supreme Court has, over the years, worked to decipher what constitutes an “establishment” of religion – that is, whether it simply means the preclusion of preferential treatment toward particular religions, or a wall of separation between church and state. And the Court has wrestled with the scope of its protections of free exercise protection, viewing the First Amendment not with absolutism, but rather balancing the individual’s interests in free exercise of religion against, for example, a state’s interest in educating students (Wisconsin v. Yoder) or ensuring compliance with anti-drugs laws (Employment Division v. Smith).
Limiting the scope of the Second Amendment is also consistent with limits on the scope of the Fourth Amendment, which is why in New Jersey vs. T.L.O., the Court held that public schools did not require probable cause to search a student, but rather only “reasonable suspicion,” because “striking the balance between schoolchildren's legitimate expectations of privacy and the school's equally legitimate need to maintain an environment in which learning can take place requires some easing of the restrictions to which searches by public authorities are ordinarily subject.” The flexibility with which the Court has interpreted the Fourth Amendment in times of national security also provides precedent here, with electronic surveillance capacity vastly expanded under the PATRIOT Act even with respect to those about whom there was not probably cause that illegal activity might occur. Rather, there was a balancing of liberty and security, which at times can be in tension with one another.
So is the case with gun violence.
There are some who attribute the gun violence epidemic to mental illness. Yet mental illnesses pervade many countries around the world, while the United States leads the world in mass shootings. Moreover, too often the legislators who dismiss mass shootings as problems of mental illness are legislators who themselves voted for legislation that reduces funding for Medicaid and destabilize for Affordable Care Act markets, both of which deliver vital coverage for mental health and substance abuse treatment. And while mental health background checks are sensible to be sure, the information one can glean from them is limited given their focus on involuntary commitment, thus leaving out those who have either not sought treatment at all or who have done so on a voluntary basis.
There are some who attribute the gun violence epidemic to exposure to violent video games. Yet many countries with access to such video games do not find that it spurs gun violence in their countries, and a ten-country comparison did not demonstrate a correlation between video game consumption and gun violence. Moreover, the countries that have the most deaths from gun violence do not tend to spend the most on video games.
Blaming gun violence on mental illness and video games is easy. What is necessary is recognizing the problem of the ease with which people acquire dangerous, high-capacity weapons under the guise of embracing the Second Amendment.
Constitutional questions are challenging, with multiple competing interests at play. But if gun rights advocates want to be taken seriously in opposing on Second Amendment grounds such basic policies as assault weapons bans, stronger background checks, and raising the age limits, they would do well to acknowledge (for better or worse) the malleability with which we have precedent in treating other constitutional rights in times of danger.
As Judge Richard Posner wrote, “Concretely, the scope of these rights has been determined, through an interaction of constitutional text and subsequent judicial interpretation, by a weighing of competing interests… The safer the nation feels, the more weight judges will be willing to give to the liberty interest. The greater the threat that an activity poses to the nation's safety, the stronger will the grounds seem for seeking to repress that activity, even at some cost to liberty. This fluid approach is only common sense.”
We can certainly debate the virtues of setting a precedent for relaxing First and Fourth Amendment protections, but to act as though any act of gun control is impermissible because of the existence of the Second Amendment is as ill-informed as it is dangerous. And quite rightly, lower courts have held that assault weapons bans are not inconsistent with the preservation of the Second Amendment and the central holding of Heller, with the 4th Circuit holding in Kolbe v. Hogan (2017) that the gun prohibition advanced an important state interest of protecting public safety. The reality is that we do not have a precedent of treating all rights in the Constitution in a dichotomous, all-or-nothing fashion, and to pretend otherwise limits our capacity to have serious and thoughtful discussions about the balancing of Second Amendment rights and the public safety measures on which lives literally depend.
The United States has more guns per capita than the rest of the world, and its epidemic of gun violence poses profound challenges of public safety and public health. With people dying every day from gun violence – both from suicide and from homicide – and with students left every day to wonder whether their school will be the next Sandy Hook Elementary School or the next Marjory Stone Douglas High School, we owe it to our students and to our communities to be better, and to do better.