The Second Amendment Is Not Why The U.S. Doesn’t Have Good Gun Control Policy

No civilian — let alone a deeply troubled 19-year-old with violent fantasies — should be able to purchase a semiautomatic rifle. But the Second Amendment isn’t the what’s stopping this from becoming law:

Why is gun control policy in the United States so lax? One common response is to point to the Constitution. Certainly, many opponents of gun control argue that virtually any regulation of firearms that goes beyond the weak federal status quo violates the 2nd Amendment’s guarantee of the “right to bear arms.” But the Constitution is not the primary reason why the United States permits civilians to arm themselves like soldiers.

The Supreme Court, after all, has only interpreted the Constitution as protecting an individual right to bear arms since 2008. And the court’s decision in D.C. vs. Heller left a much wider scope for gun control than is commonly recognized. In his majority opinion, the late Justice Antonin Scalia wrote that “the right secured by the 2nd Amendment is not unlimited” and that the 2nd Amendment does not prevent the state from banning “dangerous and unusual weapons.”
On its face, a federal ban on semiautomatic weapons would be constitutional even under Heller.

Admittedly, what constitutes a “dangerous and unusual” weapon is not precisely defined by Scalia’s opinion. It’s possible that the current Supreme Court would read it narrowly and strike down a state or federal ban on semiautomatic weapons. But even if this turned out to be the case, this is a contingency, not some permanent feature of American constitutionalism compelled by the text of the 2nd Amendment. Any Supreme Court with a Democratic median vote would uphold such a ban.

If it’s not the Constitution that stops the United States from passing stronger gun control measures, what is it? To put it simply, politics and culture.

The relatively recent radicalization of the National Rifle Assn. and its capture of the Republican Party makes even modest gun control measures impossible at the federal level and in most states. And while public opinion supports most specific gun control measures, including bans on assault-style weapons, opponents of gun control tend to be better mobilized and organized.

At the national level, there’s an additional structural problem, which is that both houses of Congress overrepresent rural jurisdictions where support for gun control is relatively weak and opposition is particularly intense.

So while major federal gun control legislation is a complete non-starter when Republicans control the White House and/or either house, even a unified Democratic government would face an uphill climb. The median votes in both Houses will almost always come from places where casting a crucial vote for gun control measures might end a politician’s career. And, needless to say, the skewed anti-urban representation of Congress and the electoral college make unified Democratic governments less likely in the first place.

Although the short-term prospects for major federal gun control are bleak, supporters shouldn’t give up the longer-term struggle. The Constitution does not forbid a ban on semiautomatic weapons or other gun control measures that could attenuate this horrible violence. The NRA’s hold on the political class is not inevitable.