Notice And Comment: Should We Repeal The Second Amendment?
Notice And Comment: Should We Repeal The Second Amendment?
Does a provision about guns belong in the U.S. Constitution?
Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at davidlat@substack.com, and you can subscribe by clicking on the button below.
Let’s play a game of “one of these things is not like the others”:
Freedom of speech.
Freedom of religion.
Equal protection.
Due process.
The right to own a gun.
The first four things are fundamental, transcendent values that belong in our foundational document, the U.S. Constitution. Compared to the first four, the fifth—the right to own a gun—is a triviality. It does not belong in the supreme law of the land.
The horrific shooting of 19 schoolchildren and two teachers in Uvalde, Texas, has given rise to familiar debates about gun control. I won’t rehash the policy arguments for and against gun control, which we’ve all heard before. Instead, since this is a legal newsletter, I’ll pose a legal question: Should we repeal the Second Amendment?
In a lengthy Twitter thread, I made a case for repealing the Second Amendment. I’ll share some thoughts here, then turn the floor over to you, my readers, to debate and discuss in the comments to this post.
At the outset, yes, I realize my proposal is not realistic. In my Twitter poll, 91 percent of respondents said they oppose repeal. That’s not exactly representative—my poll went viral in the pro-gun community, skewing the results—but I recognize there’s no way we’d be able to meet the onerous requirements of Article V for amending the Constitution.
But as a theoretical matter—and I know that my readers, many of them lawyers, enjoy theoretical debates—does the Second Amendment deserve to be in the Constitution? I don’t think so, for a few reasons.
First, the right to own a gun simply doesn’t rise to the level of the other provisions in the Bill of Rights and the Constitution more generally. Owning a gun is nowhere near as important as the right to speak freely in a democracy, the right to worship as you please, or the rights to due process and equal protection. It’s just the right to own a piece of metal—pieces of metal responsible for almost 50,000 deaths, both homicides and suicides, in the United States each year.
Free speech, religious freedom, equality before the law, and protection from arbitrary state action are internationally recognized human rights that appear in the constitutions of many nations. Only three countries—the United States, Mexico, and Guatemala—protect a right to bear arms in their constitutions. That speaks volumes.
Second, without a Second Amendment, both state governments and the federal government would be free to enact reasonable restrictions on gun ownership and use, without constitutional constraint—and these laws would save lives. Governments could pass laws outlawing certain types of guns, like assault rifles, or certain features of guns, like high-capacity magazines, without worrying about such laws getting struck down by courts. And from a federalism perspective, scrapping the Second Amendment would allow states to pass gun-control laws that reflect their own values—a good thing, given how much views on gun rights vary from state to state.
A common response to calls for more gun-control laws is that we have such laws right now, and we still have thousands of gun deaths each year. But nobody claims that gun-control laws can prevent all gun deaths; rather, the argument is that more and better gun-control laws would, over time, reduce gun deaths, in the aggregate. (Yes, some states and cities with strong gun-control laws still have many gun deaths; but many factors affect gun violence besides the law, and we don’t know whether gun deaths in these places might be even higher with weaker laws.)
Third, the argument that gun ownership by citizens serves as a check on tyranny is “a relic of the 18th century,” in the words of the late Justice John Paul Stevens, and “quaint,” in the words of conservative columnist Bret Stephens (both of whom support repealing the Second Amendment). Despite its flaws, our current democratic government is fairly responsive to the people. When we have had problems with what our government is doing, we have been able to address them through the normal political processes—no guns needed.
Finally, practical considerations aside, our laws should reflect our values—and gun ownership should not be one of them. Even if getting rid of the Second Amendment wouldn’t save a single life, I would still support its repeal, as a symbolic matter and a matter of principle. Having a provision about guns in the Constitution reflects support for gun culture—an unhealthy, toxic culture of violence.
One thing I should be clear about: I do not personally support criminalizing gun ownership or taking away all guns (even if I realize some states might do that or something close to it without the Second Amendment). In my book, lawful, properly regulated gun ownership by law-abiding citizens is fine—and one such citizen, my husband Zach, would be very unhappy if someone tried to take away his guns (yes, guns, plural). I also recognize that there might be times when the police or state can’t protect you, and you might need a gun to protect yourself—e.g., certain communities during the summer of 2020, when overwhelmed police departments couldn’t respond to all emergency calls, or areas that are miles away from the nearest police station.
But you don’t need an AR-15 for that; a shotgun would be more than sufficient to prevent the looting of a Target store. And as I tweeted, I will put up with the looting of a Target in Minneapolis if it will avoid another shooting in Uvalde.
So while I understand the desire to own a gun for self-defense, I don’t think we need to protect a right to own a gun in the Constitution. Instead, this right should be subject to unfettered, robust regulation, at both the state and federal level (consistent with other limits on federal power)—regulation that could save many lives.
This is a Notice and Comment post, so you know what to do: please share your views on the Second Amendment and gun-control laws more generally, in the comments to this post (open to all readers, not just paid subscribers, for this story). I recognize that people have very strong opinions on this issue—for example, Zach and I disagree vehemently—but I am open to being persuaded and welcome hearing a wide range of opinions (as long as they’re expressed in civil and thoughtful fashion, which is unfortunately not the case on Twitter). Thanks!
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We need not "repeal" the Second Amendment, just return it to its original meaning. As originally understood (and until Heller), the Second Amendment did not create an individual right to keep and bear arms, only a militia right. Rather than belabor this point in an extended post, I am linking to the two amicus briefs in Heller that made this point best. Here is the Historian's amicus brief (https://www.nraila.org/heller/conamicusbriefs/07-290_amicus_historians.pdf). Here is the NAACP Legal Defense Fund's amicus brief (https://www.nraila.org/heller/conamicusbriefs/07-290_amicus_naacp_ldf.pdf). Disclosure: I helped proofread (but did not write any part of) the NAACP LDF brief.
Interesting note - Dale Ho (current nominee to the SDNY) was one of the authors of the NAACP LDF amicus brief.
The right to keep and hear arms is the second most important right in the Bill of Rights, right behind freedom of religion. Without the ability for citizens to defend themselves against tyranny, the rest of the rights are there in name only. Just look at Russia, North Korea, Iran, etc.