The Second Amendment does not bar gun control. Let’s stop pretending that it does

The Second Amendment is no obstacle to effective gun control. The issue is not about the U.S. Constitution, but about whether there is the political will to take the actions necessary to decrease gun violence.

The Second Amendment states: “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.” From 1791, when this was adopted, until June 2008, not one federal, state, or local law was found to violate the Second Amendment.

The Supreme Court said on several occasions that the Second Amendment means just what it says: It protects a right to have firearms for the purpose of militia service.

In District of Columbia v. Heller, in 2008, for the first and only time in American history, the Supreme Court found a law to violate the Second Amendment. The Court struck down a 35-year-old District of Columbia ordinance that prohibited the ownership or possession of handguns. Justice Antonin Scalia, writing for the majority in a 5-4 decision, said that the Second Amendment protects a right to have guns in the home for the sake of security.

But the Supreme Court was clear that the government can regulate where people have guns, such as prohibiting them near schools or airports. The government can also regulate who has guns, such as by prohibiting firearm ownership by those with criminal records or a history of serious mental illness. And the government can regulate the type of weapons that people can possess.


Therefore, there is much that Congress, and state legislatures, can do to prevent the mass shootings that have become all too common.

One possible action is for state legislatures to adopt so-called red flag laws. Such laws permit police or family members to petition a state court to order the temporary removal of firearms from a person who may present a danger to self or to others. The court order also may prevent a person from purchasing guns. Seventeen states, including California and the District of Columbia, have adopted red flag laws. California adopted its law after a gunman killed six people and wounded 14 others in 2014 near the campus of the UC Santa Barbara.

Although it is unclear whether red flag laws prevent mass shootings, a number of studies have shown that they are successful in decreasing suicides. Taking guns away from those a court finds to be potentially dangerous is undoubtedly desirable.

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Erwin Chemerinsky
Public Safety and Recreational Firearms Act expire in 2004

Weapons that serve no other purpose except to kill a large number of the public in a short amount of time should be banned again. These are exactly the kind of weapons used in so many of the recent tragedies.

Likewise, large capacity magazines have been important in all of the recent mass shootings and should be banned. Universal background checks should be required for all gun purchases. The gun-show and private-sale loophole to background checks must be closed.

There is enormous popular support for gun control laws. According to one recent national poll, over 90 percent of voters are in favor of requiring criminal background checks for all guns sold in the U.S. More than 80 percent believe those convicted of domestic violence should not possess a gun and support required trigger locks for firearms. Nearly 70 percent of voters support assault rifle bans and no-fly list gun sales bans.

Yet, despite tragedy after tragedy, meaningful gun control laws are not adopted. It is an enormous failure of our democracy and our government. It shows the power of groups like the NRA.

One can only wonder, how many more people must die before politicians stop following the dictates of the NRA and adopt essential steps towards meaningful gun control.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.
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