Don’t Blame the Second Amendment

By Charles C. W. Cooke

Monday, June 22, 2015

Last Wednesday evening, a 21-year-old white supremacist shot and killed nine black churchgoers in Charleston, S.C., in one of the most horrific terrorist attacks of recent years. Because of where it happened — and why — it represented an assault not only on a group of people, but on American history itself. As a result, both the grief and the condemnations were more pronounced than is typical.

At first, the reactions were almost exclusively sentimental, the vast majority of the mourners electing to focus in on what the killings meant. But as the dust settled and the news sank in, many turned to more practical considerations. Predictably, the fractious question of America’s unique firearms laws was pushed to the fore. Because I am well known for my staunch support of the Second Amendment, I received a number of critical e-mails and tweets both asking me what I thought and enjoining me to change my mind. Typically, these took the following form: “The United States Constitution is amendable. In fact, the Second Amendment is itself an ‘amendment.’ It may have made sense in 1791 for the people to be armed, but it does not now. Americans should come together and excise this provision for the good of all.”

I have spent a good deal of time during the last three years making the moral, legal, and philosophical case for the right of the people to keep and bear arms, and I shall not repeat that brief here. Equally, I shall not repeat my earlier observation that nothing President Obama has proposed so much as intersects with what happened in Charleston. Instead, I would like to explain briefly why I think that to blame the Second Amendment itself — and, for that matter, to propose its repeal — is not only to rather miss the point, but to expose the root flaw in the way that the skeptics view the whole question of firearms in the United States.

It is certainly true that the Supreme Court has ruled only recently that the Second Amendment protects an individual right, and that in so doing it has preempted the sort of stringent gun regulations that obtain in, say, Australia, France, or Britain. It is true, too, that it is only since 2010 that the right has been applied to the states. And yet, outside of a few pockets, it is the case that the practical consequences of that jurisprudential recognition have been limited. Critics of America’s “lax” gun laws like to complain bitterly that nowhere else in the developed world can civilians buy a semi-automatic AR-15 and attach a 30-round magazine to it; that nowhere outside of America can civilized people carry a gun upon their person when they go to the mall; that, were Germans or Indians or New Zealanders to keep revolvers in their cars, they would be arrested. This is a mostly fair assessment of American exceptionalism in this realm. But — and this is key — that exceptionalism is primarily the product of contemporary political pressure, and not of constitutional arrogation. Were the Supreme Court to pretend tomorrow that the Second Amendment does not mean what it plainly means, very little would actually change. Yes, San Francisco, New Jersey, and Chicago might attempt to ban handguns or to refrain from offering concealed-carry permits or to ban gun stores within their city limits. Washington, D.C., too, would revert to its former lockdown. But, other than that, the country would look roughly the same once everybody had taken stock of the ruling.

As any honest observer knows, the now-defunct Federal Assault Weapons Ban of 1994 was not struck down by “activist” judges, but by legislators who declined to renew it when it expired in 2004. Similarly, all but a handful of the concealed-carry regimes that are now in force were instituted by state legislatures, not by courts. As for the purchase-permitting systems, mandatory waiting periods, and ammunition-recording requirements that once intruded? They were removed by popular demand, not by legal appeals. That if Heller were to be overturned Idaho could technically ban handguns is somewhat beside the point. Idaho doesn’t want to ban handguns. Hell, Idaho doesn’t want to ban AK-47s or rocket launchers or .50-caliber sniper rifles. “Can” does not equal “would.” The United States is not Britain.

Should they so wish, the critics of our present arrangement can throw animadversions at John Roberts and at James Madison and at anyone else they dislike. They can tweet rude words at me, and tell me I am a throwback, too. But, for all their admonitions, it will remain a fact that nobody in a black robe or a powdered wig is instructing the American public to buy record numbers of guns, to apply for millions of concealed-carry permits, to demand the liberalization of their state laws, to take up shooting for the first time, or to tell pollsters that they side with the Second Amendment rather than with the sort of restrictive legislation that we see abroad. For better or for worse, the lion’s share of the pro–Second Amendment energy that has marked the last 25 years has come not from the judge’s gavel but from political shifts at the local and national levels. The quandary that the reformers face can be summed up simply: Were we the sort of culture that would be willing to repeal the Second Amendment, we would be the sort of culture that would not need to do so.

We are not that culture. As of today, 90 percent of state constitutions have their own Second Amendment-equivalents in force. (That’s 45 out of the 50 states, for those keeping count). And, crucially, a good number of those protections were added after 1950. According to Eugene Volokh’s definitive list, no fewer than twelve states have added the right to keep and bear arms to their charters in the last 60 years: Alaska in 1955 (it was strengthened in 1994); Delaware in 1987; Florida in 1968; Hawaii in 1959; Illinois in 1970; Nebraska in 1988; Nevada in 1982; New Hampshire in 1982; North Dakota in 1984; Virginia in 1971; West Virginia in 1986; and Wisconsin in 1998. As of 2015, only California, Maryland, New Jersey, Iowa, and Minnesota lacked enumerated protections. If the Second Amendment really is a 19th century throwback, one has to wonder why so many jurisdictions have been so keen to incorporate it into their modern constitutions.

One has to wonder, too, why there has been no serious repeal movement in any of the 45 protected states. It is fair to argue that it is prohibitively difficult to change the federal constitution, and that, even if there were a groundswell in favor of alteration, doing so would be an exceedingly tall task. But it is much, much easier to alter most state charters. Why has nobody successfully done so? Could it be, as it is at the federal level, that there’s no real desire?