February 5, 2013
Private: Second Amendment on Side of Reformers
Adam Winkler, assault weapons, D.C. v. Heller, gun reforms, high-capacity magazines, Second Amendment, Statement of Professors, universal background checks
by Adam Winkler, professor of law at UCLA School of Law and author of Gunfight: The Battle over the Right to Bear Arms in America
As Congress considers proposed reforms to the nation’s gun laws, opponents of reform have appropriately drawn attention to the Second Amendment. The Second Amendment protects the rights of individuals to have guns and lawmakers have an obligation to consider whether any law they pass is consistent with constitutional law. No member of Congress should vote for a bill that violates the Second Amendment.
Where opponents have gone wrong is in constitutional analysis. They claim the Second Amendment would be infringed by the proposed reforms,
which include universal background checks, limits on high-capacity magazines, and restrictions on assault weapons.
Yet none of these laws are likely to be overturned by the Supreme Court as violation of the Second Amendment. That is the view expressed by over 50 distinguished constitutional law professors in this Statement of Professors of Constitutional Law: The Second Amendment and the Constitutionality of the Proposed Gun Violence Prevention Legislation. The signatories include Laurence Tribe, Richard Epstein, Eric Posner, Reva Siegel, Geoffrey Stone, Charles Fried, Walter Dellinger, Dawn Johnsen, Larry Lessig. I was one of a number of Second Amendment specialists who signed, including Sandy Levinson, Mark Tushnet, Joseph Blocher, Jamal Greene, Michael Dorf, Carlton Larson, and Lawrence Rosenthal.
In the landmark District of Columbia v. Heller case, the Supreme Court made clear that many forms of gun control are consistent with the Second Amendment. The Court expressly recognized the “presumptive constitutionality” of laws designed to keep guns out of the hands of criminals and the mentally ill and restrictions on “dangerous and usual” weapons. Since Heller, the vast majority of gun laws have been upheld by the federal courts. Indeed, the D.C. Circuit recently upheld bans on high-capacity magazines and assault weapons, reasoning that such laws do not interfere with anyone’s right to self-defense. The decision was written by Reagan Supreme Court nominee Douglas Ginsburg.
Supporters of reform should embrace, not fear, the Second Amendment. The law, after all, is on their side.
Constitutional Interpretation, Criminal Justice, Individual liberties, Supreme Court