The limits of the Second Amendment

If you listen to the National Rifle Association, you'll learn that the right to bear arms is not only the most important of all rights — more so than the right to free speech or free exercise of religion, they say, because an armed citizenry is what guarantees all the other rights — it's also a right that exists virtually without limit. The Constitution grants you the right to bear arms, which means you have a right to almost any weapon you'd want, in as great a quantity as you want, and you should be able to take that weapon anywhere you want.

If the courts upheld that conception of gun rights, it would indeed make the Second Amendment unique. You have a right to free speech, but it has plenty of limits — you can't set up an enormous speaker system and blast Motorhead tunes at your neighbor's house in the middle of the night, or libel someone, or incite people to commit crimes, even though those are all acts of speech. You have the right to practice your religion, but not if it involves human sacrifice. You have the right to be free of "unreasonable searches and seizures," but the government has all kinds of ability to search you and seize your stuff, even in ways that seem pretty unreasonable.

In short, every right has its limits. And that's exactly what the Supreme Court suggested on Monday, when it declined to hear an appeal of a suit against a law in Highland Park, Illinois, that banned assault weapons and high-capacity magazines in the town. Not only did the court hand gun rights advocates a loss, the vote was 7-2, including Chief Justice John Roberts and Justice Samuel Alito, both of whom had voted in 2008 to create an individual right to own guns for the first time in American history.

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There will no doubt be more cases testing the limits of the right to own guns, but this ruling suggests that many state and local restrictions are going to stand, which means that on gun laws, we'll continue to move toward two systems of regulation, one in blue states and one in red states.

The good news for those who would like to limit gun proliferation is that Democrats, after two decades of being afraid to talk about guns, finally seem eager to have this debate. President Obama takes his frequent opportunities (since we're never more than a week or two away from a high-profile mass shooting) to press for action on guns. Hillary Clinton, the likely Democratic presidential nominee, has been talking more plainly about guns than any Democratic nominee in years. And Democrats in Congress are actually bringing up new bills on guns.

The bad news is that everything that's being proposed would have an impact only on the margins of the toll of gun violence.

Consider assault weapons. They get much of the attention in the gun debate, for a few reasons. First, they're often used in mass shootings, favored by murderers wanting to kill large numbers of people for their quick firing, relative accuracy (compared to handguns), and ability to take high-capacity magazines. Second, they've become enormously popular with those who harbor paramilitary fantasies in which they become the hero of their own action movies. And third, gun opponents simply find it ridiculous that any private citizen should be able to walk into a gun store and walk out with what is essentially a weapon of war.

We've been arguing about assault weapons for years. Congress passed a federal ban on them in 1994, but it expired in 2004 and wasn't renewed. One of the problems came in how to define an "assault weapon," and the writers of the law settled on defining it as a semi-automatic gun with a detachable magazine that had two or more of a list of features like a folding stock, a bayonet mount, a flash suppressor, and so on. Gun manufacturers quickly realized that with some cosmetic modifications, they could easily produce assault weapons that didn't qualify as assault weapons under the law and were therefore perfectly legal.

So the ban only had a limited effect in slowing the spread of those weapons. But more importantly, for all the symbolic power an AR-15 can hold for both sides, the overwhelming majority of gun violence happens with handguns. And however states might try to reduce gun proliferation, they're going to have no luck banning handguns. When the Supreme Court ruled in 2008 that the right to bear arms was an individual one (i.e. it existed outside the context of a "well-regulated militia"), it was the District of Columbia's ban on handgun ownership that was overturned.

In the time since, gun advocates have succeeded in passing laws in state after state to make it as easy as possible to get handguns and take them wherever you might want, to the point where in conservative states run by Republicans, they've almost run out of laws to pass. The best they can do is look around for new places people ought to be allowed to take their guns, like bars (because if there's one thing you want drunk people to have, it's quick access to firearms).

On the other side, while liberals are still interested in assault weapons bans, many have shifted away from the idea of bans on types of guns to focus on limiting who can buy guns and what's required to do so. That means things like universal background checks and restricting domestic abusers from getting guns, which are both popular and probably comfortably within the Supreme Court's understanding of the Second Amendment.

Liberals can take some small measure of solace in the fact that the NRA's conception of gun rights without limit is shared by very few, and even many conservatives find it absurd. But even where Democrats are in charge and are able to pass whatever gun laws they want, the restrictions they come up with are going to have only a modest impact on the overall number of guns and the attendant death toll. The right to bear arms may not be limitless, but it's expansive enough to allow for a whole lot of carnage.