As the Parkland, Fla., school shooting revealed yet again, when it comes to firearms, the differences between Americans has become too monumental to overcome. On one end of the political spectrum are left-wing politicians and pundits calling for the elimination of the Second Amendment and severe restrictions on virtually every kind of gun. On the other end are Americans who believe the best way to stop mass shootings is to have even more weapons available to the public, and for everyday citizens, including teachers, to be better armed so that they are capable of defending themselves and others from murderers like Nikolas Cruz.
How can this stark divide ever be reconciled? Although it may be difficult for many to accept, the answer is likely that it can’t. The United States is in desperate need of a new Second Amendment, one that recognizes the fundamentally different views people today have about guns, their role in society, and our rights as citizens.
When the Founders first wrote and passed what we know call the Second Amendment, they viewed the Constitution in an entirely different way than most people do today. Originally, the U.S. Constitution was, for the most part, only understood to govern the relationship between Americans and their federal government. The Bill of Rights was largely meant to protect the states and the people from an out-of-control centralized power in the nation’s capital. Most laws were passed at the state and local levels, and state constitutions determined the limits of those laws, including gun laws.
In 1833, Supreme Court Chief Justice John Marshall clearly articulated this principle when writing the majority opinion in Barron v. Baltimore. “The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States,” Marshall wrote. “Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated.”
As with other important issues, the Civil War and its fallout radically transformed the scope of the Constitution. Following the passage of the 14th Amendment—which reads, in part, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”—some courts began determining that at least some of the federal Bill of Rights applies to the states as well. This extension of the Constitution, combined with the tremendous technological improvements in transportation, media, and more than a century of additional Supreme Court cases, resulted in the high-stakes national policy debates that have become so common. Instead of making decisions at the state level, uniform laws are imposed on more than 320 million people, irrespective of the nation’s many different cultural, political, religious, moral, and philosophical differences.
For most issues, Americans are willing to accept such a model. But on the issue of guns, it has become increasingly evident there is no resolution. Either left-wing states and their citizens will have to continue living in a nation in which guns are constitutionally protected, or they’ll have to change the Constitution to ban most or all types of guns from being owned.
Fortunately for those of us who support gun owners’ rights, the likelihood of an anti-gun constitutional amendment ever being ratified by three-fourths of the states—a requirement of the Constitution—is virtually nonexistent. Even under the best circumstances, it’s unlikely half the states would be willing to approve such an amendment.
Unfortunately for gun advocates, left-wingers don’t need an amendment to gut the Constitution of its firearms protections. Five Supreme Court justices who oppose the established, two-centuries-old view of the Second Amendment are all that are needed to reinterpret the meaning of the amendment’s “right to bear arms.” And although Republicans now control Congress and the White House, it seems it’s only a matter of time before the pendulum swings in liberals’ favor, opening the door for the elimination of most gun rights. After all, liberals already have four justices on the bench who would likely approve of a law creating radical restrictions on gun rights, and the Court’s swing vote, Anthony Kennedy, is 81 years old.
The United States needs a new amendment governing gun rights, and the only amendment that would likely have any chance of being approved would be one that returns the Second Amendment to the position the Founders envisioned, when it only applied to federal law. This, coupled with clarifying language that makes it more difficult for federal authorities to restrict gun rights, would permit states to issue stricter gun bans, assuming their state constitutions allow it. But it would also ensure citizens in states where guns are valued—which, by the way, is most states—are guaranteed from ever having their gun rights taken from them by a Supreme Court controlled by left-wing justices.
Such a scheme would likely result in some gun owners losing their ability to purchase or possess some or possibly all guns. But it would also protect gun owners in the clear majority of states and turn those states into safe havens for those who want greater firearms freedom. It’s not a perfect compromise, but it’s probably necessary to ensure the long-term survival of gun rights, and maybe even the country.