Re-write the Second Amendment

By Zachary Elkins

From The New York Times

The elementary-school shootings in Newtown, Conn., in December produced two polar public reactions: fear among some Americans that the federal government will restrict gun rights, and hope among others that it will actually do so. Colorado, New York State and, most recently, Connecticut have clamped down on guns, while states like Texas, where I live, are considering legislation that would try to block the enforcement of federal gun regulations. The uncertain approach to guns is good for no one, except perhaps for gunmakers, whose sales have skyrocketed.

Lost in this confusion and anxiety is the possibility that a basic consensus on guns exists among Americans. Opinion polls suggest that a majority recognize a right to bear arms, subject to reasonable regulations protecting public safety. This strong dual commitment, if clarified and entrenched in our Constitution, could reassure most, though not all, of us.

Before you mock the idea of a constitutional amendment, consider that hardly anyone is happy with our unstable status quo: gun enthusiasts fear their rights are under constant threat; gun-control advocates point to the danger of illegal guns and easy access to firearms.

It is actually quite unusual for gun rights to be included in a constitution. In our historical study of constitutions, my colleagues and I identified only 15 constitutions (in nine countries) that had ever included an explicit right to bear arms. Almost all of these constitutions have been in Latin America, and most were from the 19th century. Only three countries — Guatemala, Mexico and the United States — have a constitutional right to arms. Of the 15, ours is the only one that does not explicitly include a restrictive condition. Of course, many Americans, and a minority of the Supreme Court, believe that our “militia clause” amounts to one such a restriction — an interpretation the court rejected in 2008 when it ruled that the Second Amendment protected the individual right to bear arms.

What would happen if our right to gun ownership were explicitly protected and balanced against a concern for public safety?

Laws to permit the carrying of concealed weapons are on the rise, but even the most ardent gun-rights advocates would not argue that owners should be free to carry, say, AK-47’s as they walk down the street. One of the most conservative justices, Antonin Scalia, in an opinion in the 2008 case, Heller v. District of Columbia, agreed with common-sense limitations like bans on guns in schools and government buildings.

Most Americans are committed to the Constitution and rely on the courts to adapt our antique highest law to modern technological and cultural developments. Many of us trust the judiciary to balance rights against the inevitable restrictions on them. But we are left with the awkward, irresolvable phrasing of the Second Amendment: “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.”

“What part of ‘shall not be infringed’ do you not understand?” the gun-rights advocate asks. “What part of ‘a well regulated Militia’ do you not understand?” goes the retort.

Partly because of this ambiguity, the Second Amendment seemed almost irrelevant for most of our history. In the 19th and 20th centuries, many American towns and states regulated guns. In the deadly confrontation at the OK Corral in Tombstone, Ariz., in 1881, Wyatt Earp was enforcing a ban on carrying guns in public.

But in the 1980s, a movement to interpret the amendment as promoting the right to bear arms for self-defense emerged. It reached an apotheosis of sorts in the 2008 case, which struck down the District of Columbia’s ban on handguns. It was the first time the court had ever restricted gun regulation, but the 5-to-4 vote also suggests that the decision is not fixed doctrine.

This constitutional uncertainty should suggest to both sides the possibility of agreeing on a formal clarification of the constitutional text. Zealots will scoff, but many reasonable people would find reassurance in a revised Second Amendment that was properly balanced. Those who propose responsible limits, like background checks, would welcome constitutional support for common-sense safeguards. Those who worry about the slippery slope of encroachments on gun rights would find comfort in an explicit reassertion and reinforcement of the general right to bear arms.

Of course, even an uncontroversial constitutional amendment requires a minor miracle. The last time our Constitution changed, with the ratification of the 27th Amendment in 1992, it took a 10-year campaign (begun by a University of Texas undergraduate) to resuscitate an amendment that Congress had submitted to the states for ratification more than 200 years earlier.

A new gun-rights amendment would need to articulate a basic consensus that would let both sides claim victory. The alternative is more violent rhetoric — and more deadly violence.

Zachary Elkins is an associate professor of government at the University of Texas, a director of the Comparative Constitutions Project and an author of “The Endurance of National Constitutions.”