When backed into a corner, gun owners tend to cite the Second Amendment as the reason the government cannot pass certain types of gun regulation. In reality, however, the uncertain scope of Second Amendment rights is one of the primary reasons the gun-rights community absolutely opposes even the most benign improvements to the prevailing regime regulating firearms in the United States today.
To achieve a more rational and more robust system of gun regulation, we should consider amending the Second Amendment to clarify the scope of protections it affords United States citizens. Doing so would go a long way to addressing the persistent fear of slippery slopes that underlies virtually all opposition to regulatory proposals.
The position of many gun owners is based in fear. They see gun rights as insecure, malleable, and under constant attack. In some sense, they are exactly right. Every time a madman uses a gun to kill people, gun-control advocates harness the nation's raw emotions to pressure legislators to crack down on whatever the prevailing gun-rights regime is at the time of the shooting. Each and every time, gun owners fight like hell against any and every proposal, seemingly irrespective of the merits of the options on the table. The reason for this is simple: Gun owners take the position that they would rather defend their rights from the Rhine than from the Rubicon. NRA members have a very healthy fear of slippery slopes, and they worry that if they concede today on, say, reducing the permissible magazine size to 10 rounds, the next time some wacko goes into a school using those 10-round magazines and kills children, gun-control activists will call to reduce the magazine capacity even more.
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This fear of slippery slopes is why gun-rights advocates seem so unreasonable — they are unwilling to compromise today because they do not trust that the terms of their deal will be honored by the public and by gun-rights opponents in the future. The British and Australian experiences with gun-rights legislation actually supports this sense of paranoia. In both countries, the politics following several mass killings have led to remarkably restrictive gun-rights regimes that most Americans would oppose. If America's gun owners concede even small things now, they risk further erosions of rights later.
Gun owners' tendency to take absolutist and seemingly unreasonable positions on even the most mild forms of regulation is only heightened by the uncertainty about the true scope of the protection afforded by the Second Amendment. While the Supreme Court affirmed the existence of an individual right to bear arms in D.C. v. Heller, Justice Scalia's opinion stops well short of fleshing out the contours of what that right entails exactly.
Without a clear sense of just how far federal legislators can go in regulating firearm rights, the gun-rights community will continue to categorically oppose each and every piece of legislation and, given the size and scope of the NRA's constituent base (and, lest we forget, the NRA is powerful because it has so many members and they care so deeply about the issue), we will continue fighting over things like a better system of background checks — which almost no one really opposes on the merits.
There is only one way to change this status quo: Amend the Second Amendment of the United States Constitution. Spell out that the government is prohibited from, say, reducing the maximum clip capacity below 10. Explain in plain and specific language exactly what the Second Amendment allows.
By rewriting the Second Amendment to explicitly state that the government cannot pass unreasonable regulations and creating a black-and-white articulation that the law is weighted in favor of individuals owning nearly whatever guns they choose, the gun-rights community would have far less reason to fear that they will tumble down the same slippery slope that the British and Australians did. In return for these new protections, however, the gun-rights community should be forced (and should be willing) to accept magazine limits at 10 rounds, bans on some extreme kinds of firearms, and a more robust and complete background check regime.
If we really want to achieve a better balance of freedom and safety, both sides need to feel that they receive something from the process. Clarifying the Second Amendment would obviate gun owner fears that the government will only continue to encroach on their rights and, in return, gun owners should be willing to accept the vast majority of the president's proposals since they could no longer reasonably claim that there is some agenda to move against their individual rights.
Jeb Golinkin is a 3L at the University of Texas School of Law and writes about U.S. politics and policy for TheWeek.com. From 2008 to 2011, he served as an editor and reporter for Frum Forum/New Majority. Follow him on Twitter (@JGolinkin) and email him at jgolinkin@gmail.com.
