Memo to Congress: Why the NRA's Absolutism Is Indefensible

[billh58]

http://www.huffingtonpost.com/dana-radcliffe/pro-gun-politicians_b_2685787.html

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The NRA's standard defense of its absolutism is to appeal to Amendment II of the Constitution: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." Since the Second Amendment guarantees the right to "keep and bear arms," the NRA claims, any new regulation of guns infringes on that right. But, of course, the Second Amendment does not explicitly say that restrictions on guns infringe on the right it confers. Rather, that is the NRA's interpretation of the Second Amendment, an interpretation not shared by most Americans. How might a member of Congress who invokes the Second Amendment in rejecting new gun controls support the NRA's interpretation?

Conceivably, she might argue that this interpretation if self-evidently correct, that the meaning of the Second Amendment is obvious and clearly (albeit implicitly) precludes new constraints on gun sales and ownership. But this argument is plainly fallacious. First, historically, how to interpret the Second Amendment has been extensively debated, with legal scholars advancing widely divergent constructions. Second, the framers of the Constitution knew well that the Constitution must be interpreted, which is a main reason they instituted a Supreme Court. Third, in the Second Amendment cases it has ruled on, the Supreme Court itself has been divided in its opinions, underlining the point that what the Amendment says is far from self-evident -- and therefore not self-evidently absolutist.

If a "pro-gun" member of Congress looks to Supreme Court decisions to justify an absolutist reading of the Second Amendment, she will be disappointed. The Court has stated that the right to keep and bear arms is subject to regulation -- such as prohibition of concealed weapons, sales to criminals and the mentally ill, carrying weapons in certain locations, and possessing "dangerous and unusual weapons," as well as legal constraints on commercial sales. Furthermore, the Supreme Court has handed down only two significant decisions on gun control in the last 150 years and so has largely remained silent on its constitutionality.

The NRA often asserts that the facts warrant its absolutist view. The favorite "factual" claim supposed to justify the NRA position is that gun controls "don't work," that they are "ineffective" -- and are therefore needless administrative burdens on gun owners and a waste of taxpayers' money.

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Concluding the article, Dana Radcliffe goes on to say: "Because Americans overwhelmingly support some gun control proposals, members of Congress who oppose any new regulations must provide a very strong defense of their position. There is little reason to think that, for most legislators, such a defense is possible."

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