Gun control measures designed to prevent mass shootings are hotly debated in the wake of high-profile tragedies, yet any attempts are often met with resistance due to Heller and McDonald rulings under the Second Amendment.
While gun rights activism has made “gun” an innocuous word, it is essential that gun legislation be feasible and viable.
The Legal Arguments
For decades, the gun lobby has promoted an extreme interpretation of the Second Amendment that denies any commonsense gun safety safeguards. When combined with how American society has evolved since the time of the Framers, this has caused confusion and misperceptions as to its scope.
Many conservative legal scholars argue that the Framers intended for only state militias to arm themselves for common defense, not private citizens’ ownership of weapons. According to these scholars, both language and history demonstrate this fact: only weapons used for training sessions, firing exercises and periodic military drills would qualify under this Right to Keep and Bear Arms provision of the Second Amendment. Thankfully in 2008 the Supreme Court rejected this argument in District of Columbia v. Heller; 5-4 decision held that individuals can own firearms independent from service in state militias for traditionally lawful purposes such as self-defense or traditional self-defence within their homes under protection of traditional Lawful purposes of ownership under Section 2.
Proponents of stricter gun control laws argue that the Constitution’s original meaning and history provide grounds for an expansive interpretation of the Second Amendment. They note that well-regulated militias did not constitute today’s National Guard, while Federal, state, and local governments may regulate gun ownership and use so long as their regulation can reasonably relate to protecting public health, welfare or safety interests.
The Interpretation
During the Founding Era, there was considerable debate as to whether the Second Amendment protected an individual right or state’s rights to bear arms. Some scholars believed it only protected individual rights while others supported a states’ rights thesis.
At the core of it all was the Founding generation’s decision that individual citizens must sacrifice some of their natural rights and liberties, including the right to bear arms, for the good of society. Citizens could do this through joining militia units or paying taxes to support public defense services; alternatively they could hire conscientious objectors in place of themselves if religious considerations prevented them from bearing arms themselves.
Modern technology has rapidly transformed weapons. When the Constitution was written, muskets were the predominant firearm – slow to load and with limited accuracy – while now we see high-capacity magazines, military-style assault weapons, etc. emerging as options that raise many new questions about what the Constitution covers and its interpretation.
To address these challenges, the Supreme Court must rethink its interpretation of the Second Amendment and return to its roots – text, history and tradition – rather than binding American to an imagined past that never actually existed.
Current Gun Control Measures
As our nation struggles with gun violence, legislators are passing new laws designed to safeguard their citizens. Most major gun control legislation has been in response to high-profile shootings or murders; activists for gun control lobbied hard for laws that regulate gun ownership such as licensing requirements, background checks, safety training courses and restrictions on certain weapons.
Gun rights supporters believe the Second Amendment protects militia service, not personal gun ownership. Colonial laws required all households to possess arms; therefore, individuals have an individual right to possess firearms for self-defense or militia service under this amendment and it’s protected under the First Amendment.
Gun control advocates remain unfazed by legal arguments regarding gun ownership; after multiple mass shootings in civilian settings and schools, especially schools. Proposals include banning assault weapons and restricting ammunition magazines – some proposals being supported by students and survivors of school shootings themselves.
The ACLU believes that reasonable laws designed to reduce gun violence should be allowed as long as they do not infringe upon fundamental civil liberties principles such as privacy, due process, or equal protection of law. Our attorneys defend life-saving gun control laws across the nation while taking on gun lobbyists in courts from coast-to-coast – even reaching as high as the U.S. Supreme Court!
Future Legislation
Last June’s Supreme Court ruling has emboldened some corners of the pro-gun movement to contend that virtually any regulation on firearm ownership or use is unconstitutional, leading many proponents of gun rights to argue this position as unconstitutional. That is why ACLU remains committed to supporting gun control measures which adhere to civil liberties principles such as privacy, due process and equal protection.
No matter how passionately Americans may debate gun control, most appear to support certain restrictions on gun ownership. According to a 2023 poll, majorities of both Republicans and Democrats prefer policies which prevent people with mental illnesses from buying firearms (88% for Republicans and 89% for Democrats) and ban high-capacity ammunition magazines (69% of Republicans and 91% of Democrats).
Following several mass shootings, several states passed laws to reduce gun violence by closing “gun show loopholes”, limiting magazine size and banning devices that facilitate ghost gun production. Unfortunately, however, this legislation was met with resistance both from federal officials and from Republican voters who provide primary election support.
Congress may be unsuccessful in their attempts to pass comprehensive gun reform. If you feel as though your Constitutional rights have been infringed upon, please reach out to an experienced civil rights lawyer in order to discuss what legal recourse might exist against those responsible and find an experienced advocate who will fight on your behalf.