The 27 words of the Second Amendment don’t say anything about how many guns someone can own in America. Neither do the other 7,564 words in the Constitution. Yes, this is a facile point to make. A lot of things—including rights, responsibilities, and government powers we take for granted—aren’t itemized in the Constitution. While saying you can’t find something doesn’t necessarily mean anything, conservatives use this trick all the time. Consider marriage equality, a precept protected by the Constitution’s Equal Protection and Due Process clauses. That’s the case even though the Constitution doesn’t include the words, There shall be no discrimination by government in recognition of any marriage on the basis of race or sexual orientation.
This means a couple of things in the gun debate. First, the Constitution and its text are a starting point, not an end point, for determining what gun regulations federal, state, and local governments may pass. Second, though the Constitution’s open-ended provisions are rooted in the time of their drafting, the task of understanding them and applying them has been left to later generations. Federal courts have taken tentative, though momentous, steps in recent years to decide what the Second and 14th amendments mean in terms of gun laws. But in the wake of the slaughter in Las Vegas, some commentators appear to have lost their minds about just how far the courts have gone. No, we don’t have to repeal the Second Amendment to pass strong gun laws—Section III of the Supreme Court’s landmark 2008 Heller decision is all you have to read to figure that out.
What we need are tougher and smarter rules that keep guns out of the hands of dangerous people, while still allowing law-abiding, rule-following people to arm themselves. Perhaps the most startling fact about the Las Vegas shooter’s means of mass murder is that he stockpiled 33 firearms in 12 months, “most of which were rifles.” Why is this legal? I’m not talking about why we don’t require reporting multiple sales of long guns to federal authorities (which we don’t). I’m not talking about the bump stocks the shooter used to make his semi-automatic weapons fire like machine guns. I’m talking about why people are allowed to own more than, say, two firearms without a really good reason.
The easy answer is because that’s how it’s always been. We’ve never had a federal law that says you can only own so many guns. But is there a logical, policy-based justification for unlimited gun ownership, especially when weighed against the public safety risk of allowing someone to arm himself with weapons that are capable of shooting nearly 600 people in 10 minutes? I don’t think there is one.
The Constitution certainly doesn’t mandate that Americans be allowed to own an unlimited number of guns. In the Second Amendment, a gun enthusiast might latch onto the words “shall not be infringed” and (ironically) “militia,” and argue that any restriction on his ability to possess any gun he wants violates his constitutional rights, while also making it harder to wage war against the government if it becomes tyrannical. Neither of these arguments is persuasive. As Justice Antonin Scalia of all people wrote in Heller, “[T]he right secured by the Second Amendment is not unlimited.” Scalia also justified laws that ban “dangerous and unusual weapons”—such as machine guns—even if such bans make it harder to fight back against a tyrannical government.
Consider the recent survey showing that just 3 percent of adults own half of America’s guns, with the Washington Post reporting that those individuals “own, on average, 17 guns apiece.” Another 19 percent of Americans own the other half of the nation’s guns, leaving 78 percent of the American people who don’t own any firearms at all.
The Second Amendment uses the word arms, plural. There is also compelling 14th Amendment scholarship on the Reconstruction-era history of newly freed slaves, who used guns to defend themselves against racist marauders. But here in 2017, how many firearms does the average American need to competently defend her residence? For whom would, say, a 10-shot semi-automatic pistol and a six-round 12-gauge pump action shotgun not suffice for home defense?
Let me put that another way: Why shouldn’t we require someone who wants to own more than two firearms, and who isn’t legally in the gun business, to file an application? Send some paperwork to the Bureau of Alcohol, Tobacco, Firearms, and Explosives; submit fingerprints and a photo; and send in a $200 fee along with the make, model, and number of additional weapons you’d like to purchase (and eventually their serial numbers). You would agree to undergo a thorough criminal, domestic violence, and mental health background check, knowing that if a permit to purchase additional firearms were granted, such a background check would be performed every six months (to ensure the applicant hadn’t fallen into a prohibited category of gun owner). Finally, and most important, the reason for requesting additional firearms would be stated on the application.
What would qualify as a legitimate reason? Maybe you own a huge ranch in Wyoming and need to supply your staff members with bolt-action rifles. Maybe you own a courier business that ferries valuables for clients and you need to arm your guards. As long as they’re all properly trained and vetted, and safe-storage precautions are taken, certain business exceptions like these probably make sense. You can likely think of other potential reasons. How many of these outweigh the public safety purpose of preventing someone like the Las Vegas shooter from amassing a personal arsenal? I suspect the answer is “very few.”
Under such a two-guns-per-person law, would anyone be prevented from owning a firearm to defend themselves in their home? Clearly not. Whether or not you agree with this idea, it’s plainly correct that neither the Second Amendment nor any other part of the Constitution stands in the way of policy proposals like this one. There are countless other ideas already in circulation for reducing the horrific toll that gunfire takes on America. What’s lacking is a constant, thunderous groundswell of public demand for these and other strong regulatory steps.
Apart from our Constitution’s stated purpose to promote the general welfare, as well as the Declaration of Independence’s inalienable rights to life, liberty, and the pursuit of happiness—which can as easily encompass the freedom from gunfire as the freedom to shoot—neither the Founding Fathers nor their post–Civil War successors have much to say to us in our modern campaign against gun violence. It is up to us to honor both our Constitution and those who are gunned down every day by preventing as many of our fellow Americans as possible from sharing their tragic fate.
