The Constitution and Guns

In the days following the tragic shooting of Rep. Gabrielle Giffords and 19 others in Tuscon, Arizona, gun control advocates and gun enthusiasts alike have called for changes to existing laws. Many want more extensive background checks required to purchase a gun, or for a ban on high-capacity magazines like the kind used by the shooter. Opponents of such measures have called for the expansion of the right to carry in public, arguing that if just one law-abiding citizen had been armed, the shooter could have been stopped before he hurt so many people. With opinions about guns so strongly held across the political spectrum, it seems unlikely any changes in law are in the offing.

Many supporters of the Right to Bear
Arms are inspired by the Minutemen

For AP U.S. Government, coverage of gun issues has historically been limited to discussions about the politics of local laws. The "Right to Bear Arms" has long been left out of those incorporated by the Supreme Court, and teachers and textbooks barely touched the subject. The 2008 version (11th ed.) of Wilson's American Government, for example, referred to guns only minimally and as a "selectively incorporated" right. But because of two landmark court cases and increased focus on the issue following high profile incidents like the shooting in Tuscon and the 2007 Virginia Tech killings, AP Gov-ers need to understand the 2nd Amendment and its implications.

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.

Partly because of the ambiguous language of the 2nd Amendment, (does it suggest a right for individuals to own and carry arms, or a public right for armed militias, or both?) controversy swirled around guns through the latter half of the 20th century. But in 2008, the United States Supreme Court mostly settled the dispute in the case District of Columbia v. Heller. In his majority decision, Justice Antonin Scalia made clear the court's 5-member majority believe the amendment must be understood in its colonial-era context and that it thus "confers an individual right to keep and bear arms." And just two years later in McDonald v. Chicago (2010), the court clarified that the individual right to gun ownership must also be protected by the states, saying "the Due Process Clause of the Fourteenth Amendment incorporates the 2nd Amendment right." Though the Heller decision overturned a D.C. law that virtually banned the ownership of handguns, which SCOTUS found overly restrictive, both cases left open the possibility for some reasonable gun control restrictions.

Sep. 2010 Pew Poll

Still, the American public remains deeply divided over the right to gun ownership. In a summer 2010 Pew Research survey, half the public (50%) said it was more important to control gun ownership, while 46% said it was more important to protect the right of Americans to own guns. Also, as in many current political debates, a deep partisan divide separates views on gun control. Republicans strongly favor gun rights over gun control by a 70%-to-26% margin, while Democrats are almost as equally supportive of gun control over gun ownership by a 67%-to-30% margin. Independents mirror the nation as a whole, with 50% favoring gun control and 46% favoring gun rights. (PewResearchCenter)

With the parties and voters divided, it follows that the likelihood of a change in state and local gun laws is unlikely. Many also point to the power of interest groups like the National Rifle Association as an obstacle to change. Just three days after the Tuscon shooting, the New York Times Editorial Board wrote:

[to enact gun laws, lawmakers] will need to stand up to the National Rifle Association and its allies, whose lobbying power continues to grow... Having won a Supreme Court ruling establishing a right to keep a firearm in the home, the gun lobby is striving for new heights of lunacy, waging a campaign to legalize the possession of a gun in schools, bars, parks, offices, and churches, even by teenagers... It reflexively opposes even mild, sensible restrictions — but if there is any reason left in this debate, the latest mass shooting should force a retreat. Is there anyone, even the most die-hard gun lobbyist, who wants to argue that a disturbed man should be able to easily and legally buy a Glock to shoot a congresswoman, a judge, a 9-year-old girl?... Between 1994 and 2004, it was illegal to manufacture or import the extended clips as part of the ban on assault weapons. But the ban was never renewed because of the fierce opposition of the N.R.A.

The N.R.A. counters that they are a membership organization that represents majority American views: "We are all the people. Our effectiveness is a measure of our deep abiding love of freedom—especially that freedom that is uniquely guaranteed to citizens of the USA—the Right to Keep and Bear Arms. We represent all the people. That is why we win." (NRA Publications)

It's clear that the debate over guns will continue, but it is far less clear what will result. For now, AP Government students should be able to identify and explain the decisions in Heller and McDonald, and be able to defend and refute the arguments over N.R.A. influence on gun policy in this country.