Second Amendment myths everyone should stop believing

Second Amendment myths everyone should stop believing
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Once again, a brutal mass shooting — this one in a rural Texas church — has renewed the ongoing national debate about the regulation of gun ownership in America. 

And, like many issues of constitutional importance, the heated discussion often gets the law wrong. We can’t productively address the issue of gun regulation if we don’t understand the constitutional ground on which the Second Amendment stands.

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So, let’s dispel a few legal myths about gun “rights” in America.

 

Myth No. 1: The Supreme Court has long been clear that people have a constitutional right to carry firearms. Like much paraphrased law, this is an overstatement. The Second Amendment itself talks about two things: “[a] well regulated Militia” and “the right of people to keep and bear Arms.” 

Back in the day, American revolutionaries wanted to make sure brethren settlers could grab their muskets and join the military establishment in a crisis (or fight against it). 

In 2008, the Supreme Court agreed in Heller v. District of Columbia that the Second Amendment says “yeah, sure” to armed militias. But crucially, it added that the amendment also protects an individual’s right to use “Arms” in self-defense. In the constitutional law world, this was a big deal.

Myth No. 2: “Arms” includes handguns, rifles — and semi-automatic weapons. This one is off. “Arms” is not defined in the Second Amendment itself, but would anyone seriously argue that it means your neighbor can store plutonium in his garage and make a nuclear bomb to protect his family? Of course not.

What the Supreme Court specifically found in Heller was that handguns can be kept and used in the home for self-defense. The court then laid out a bunch of factors that may be important in deciding if something else constitutes “Arms” under the Second Amendment — including whether a weapon is one that musket-bearing settlers would have commonly used, and whether it is “dangerous and unusual.” 

The court also carved areas where the right can be limited — such as for mentally ill persons and felons, or in and around schools and government buildings. (The justices don’t even want cameras in their courtroom, let alone machine guns.)

Myth No. 3: Gun ownership is a Second Amendment issue, full stop. This one gets us into the wonky world of “separation of powers” theory, but the issue is of vital importance. These days, the Supreme Court is basically drawing the lines on gun use. But should it? Our state and federal legislators make rules too — and we elected them. When a matter is enshrined in a Supreme Court decision that interprets the Constitution, it’s very hard to change — even by Congress. Thus, we might think twice about making gun safety first and foremost about the Second Amendment.

Myth No. 4: The Second Amendment right to bear arms is sacrosanct, so any limits on it are unconstitutional. Wrong, wrong, wrong. Regardless of which side of the political aisle you are on, this is incorrect. Lots of constitutional rights have limits. Think about the First Amendment’s right to free speech. It’s pretty foundational to American sensibilities. But we treat government restrictions on religious and political speech differently than we do “speech” via child pornography or threats to the U.S. president. It’s all about balancing — we balance the good things about free speech with the bad things about free speech, and we make a call — we draw a line. 

When it comes to gun violence, we might all agree that the line can be drawn at nuclear weapons in the home. Some might draw it at automatic weapons. Or semi-automatic weapons with bump stocks. Or at mandatory background checks, or safety training or post-purchase “cooling off” periods. 

The question comes down to this: Does the Second Amendment right to self-defense outweigh the heightened dangers of increasingly lethal guns? U.S. assault rifles were designed after World War II, when commanders realized they needed more powerful battlefield weapons. Compared to “standard” guns, they are harder for law enforcement to counteract, they increase the risk of hurting and killing bystanders and they inflict greater damage on human flesh. If the shooter who killed 20 small children at Sandy Hook Elementary School hadn’t had to stop and reload, nine youngsters might not have managed to escape the carnage.

The question for us all is not whether to draw the line — the Supreme Court has already answered that many times over — but where.

Kimberly Wehle is a professor of law at the University of Baltimore School of Law, former assistant United States attorney and associate independent counsel in the Whitewater investigation and the author of the forthcoming book “The Outsourced Constitution: How Public Power in Private Hands Erodes Democracy.”