In 1991, the conservative former chief justice, Warren Burger, launched a broadside against the document that for 30 years on the Supreme Court, it was his job to interpret.
“If I were writing the Bill of Rights now,” he said in an interview on the MacNeil/Lehrer NewsHour, “there wouldn’t be any such thing as the Second Amendment.” Burger went on to say that the 27-word amendment referencing “the right of the people to keep and bear arms” had been the subject of “one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special-interest groups that I have ever seen in my lifetime.”
Gun-control advocacy groups occasionally bring up Burger’s words to buttress their campaign against the special-interest group to which he was undoubtedly referring, the National Rifle Association. But in the decades since, as the push for tighter limits on guns has surged and stalled, again and again, none of them have taken up the suggestion implicit in the justice’s critique: There has never been a serious effort to rewrite or repeal the Second Amendment.
“It’s really not part of the discussion,” said Kris Brown, co-president of the Brady Campaign to Prevent Gun Violence, the nation’s oldest gun-control group named after the former press secretary to Ronald Reagan who was wounded in the 1981 assassination attempt on the president.
In the last dozen years, an array of new organizations have launched to combat the influence of the NRA, either in response to a specific mass shooting or the persistence of daily gun deaths in America’s inner cities. Michael Bloomberg’s Mayors Against Illegal Guns merged with Moms Demand Action to form Everytown for Gun Safety. Gabrielle Giffords and her husband, Mark Kelly, created their own political action committee and legal center a few years after the former Arizona congresswoman was shot at a constituent event. More recently, liberal activists started a group called Guns Down after the 2016 Pulse nightclub massacre in Orlando to promote a more aggressive political and policy campaign against firearms.
The new players in the gun-control advocacy space have not, however, dramatically widened the scope of proposals to reduce gun violence. The main ask for most advocates remains a universal background-check system that closes loopholes that allow people with criminal records or mental illness to buy firearms at gun shows or from private dealers. The groups largely also back a ban on assault-style rifles, limits on high-capacity magazines, a crackdown on straw purchasing, and an end to the prohibition on federally-funded research into gun violence as a matter of public health.
But in the interest of pragmatism, that’s about as far as the gun-control movement will go. Congress hasn’t passed a significant gun-control measure since the Brady Bill nearly a quarter-century ago, and a major element of that law—a ban on so-called assault weapons—lapsed in 2004. In the last serious legislative effort in 2013, Democrats anointed as their point man Senator Joe Manchin of West Virginia, perhaps the party’s most avowed supporter of the Second Amendment who campaigned for election with an ad in which he loaded a rifle and fired a bullet through a piece of climate-change legislation. Despite an overt appeal to gun owners, Manchin’s background-check bill fell short, too.
Now, some on the left say the movement’s tactics and consensus-driven strategy have conceded too much to the NRA and gun-rights supporters.
“For years, established gun organizations have asked for half a loaf and walked away with a quarter, if anything at all. Oftentimes, nothing at all,” said Igor Volsky, a deputy director at the liberal Center for American Progress who founded Guns Down. Volsky’s group has tried to differentiate itself from other gun-control groups both with more aggressive tactics aimed at the NRA and corporations with business in the gun industry and by being more explicit about calling for a reduction in the number of guns—both legal and illegal—in America. “Our call here is to move toward a country where guns are scarce, where we have fewer guns, and where they’re dramatically harder to get,” Volsky told me.
In an interview, he floated ideas like licensing and mandatory training for gun owners, as well as a buyback program to reduce the more than 300 million guns estimated to be in circulation nationwide. But like its forebears in gun-control advocacy, Guns Down isn’t touching the Second Amendment itself—at least not yet. “That’s a conversation the movement is going to have and the country is going to have,” Volsky told me.
Like the nine other additions to the Constitution that form the Bill of Rights, the precise wording of the Second Amendment emerged from considerable debate. James Madison considered proposals from state ratifying conventions and leaned heavily on the declaration of rights from his own state of Virginia. But the language ratified in 1791 is indisputably awkward:
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.
Did the amendment mean to protect state militias, or did it grant a much broader right “to keep and bear arms” for every individual? For most of the country’s history, Michael Waldman writes in his 2014 book, The Second Amendment: A Biography, there wasn’t much debate: “For 218 years, judges overwhelmingly concluded that the amendment authorized states to form militias, what we now call the National Guard.”
In 2008, that all changed. Writing for a 5-4 Supreme Court majority, Justice Antonin Scalia—the conservative who filled the vacancy created by Warren Burger’s 1986 retirement—authored the decision in District of Columbia v. Heller that interpreted the Second Amendment as granting an individual the right to bear arms. The ruling struck down D.C.’s handgun ban and provided a landmark victory in the decades-long push by the conservative legal community and gun-rights supporters.
But unlike the Court’s decision in Citizens United two years later on campaign financing, it did not prompt calls for a constitutional change, nor did it alter the gun-control movement’s core strategy of trying to build consensus for “common sense” restrictions on gun access. Then as now, most gun-control advocates begin just about any call for action by restating their support for the Second Amendment. It’s a required preamble of sorts, a way of telling gun owners, I come in peace.
“I always start off and say, ‘I’m not against guns,’ so people don’t just turn you off immediately,” said Representative Robin Kelly of Illinois, a Chicago-area Democrat who has helped lead gun-control efforts for the Congressional Progressive Caucus. “I just feel like if you’re trying to make your point, people won’t even hear you if they think you’re against guns or you’re against the Second Amendment.”
The simplest reason why there hasn’t been a movement to change the Second Amendment is the daunting process for amending the Constitution, which requires a two-thirds majority vote in each chamber of Congress and ratification by three-quarters of the 50 states. The 27th and most recent amendment to the Constitution was ratified in 1992, and none of the efforts since—including bids to ban same-sex marriage or require Congress to balance the budget—have come close to success.
Representative David Cicilline of Rhode Island has been working on gun control for more than 20 years, first as a state legislator and then as mayor of Providence, where he was a founding member of Mayors Against Illegal Guns. As a Democratic member of the House, he’s the chief sponsor of a new proposal to ban assault weapons. The constitutional route, he recalled, was never a consideration. “I can say candidly I don’t really ever remember a conversation either when I was in the general assembly or in meetings with Mayors Against Illegal Guns that there was a discussion about, ‘Oh what about a major change to the Constitution,’” he told me. “So maybe we are victims of habit.”
As mass shootings have become more deadly and seemingly more frequent in recent years, there have been occasional calls to revisit the Second Amendment. After the Las Vegas massacre in October, filmmaker Michael Moore called for rewording it to apply chiefly to state militias and to circumscribe the individual right to bear arms. Bret Stephens, a conservative columnist for The New York Times, wrote a column around the same time (and again a few weeks ago) headlined, “Repeal the Second Amendment.” And retired Justice John Paul Stevens, who authored the dissent in the Heller decision, wrote a book in 2014 suggesting six changes to the Constitution. One of them would add five words to the Second Amendment making clear that the right to keep and bear arms should be understood only in the context of “a well regulated militia.”
But none of those proposals have persuaded the major gun-control groups, or any Democrat in Congress, to confront the Second Amendment itself. Cicilline told me he believes it would backfire. “I think a proposal to amend the Constitution to substantially change the Second Amendment would more likely be used by the NRA to galvanize their supporters and maybe even engage less active gun owners,” he said.
Other advocates noted ruefully that the NRA and gun-rights enthusiasts already accuse their opponents of wanting to shred the Constitution, regardless of what they propose. (“They’ll take away your Second Amendment,” President Trump warned the Conservative Political Action Conference last week.) But the overriding reason they cite in not wanting to touch the Second Amendment is that they don’t believe it’s necessary to achieve their goals. Even Scalia, in writing the Heller decision, made clear that the individual right to keep and bear arms “is not unlimited.” The decision stated:
The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Though the Supreme Court subsequently applied its decision not only to federal law but to the states as well, it has refused to hear challenges from conservatives to gun laws passed in the states in the years since, including expanded background-check requirements and assault-weapons bans. “Like most Americans, we support both the Second Amendment and common sense,” said John Feinblatt, Everytown’s president. “It’s not an either/or proposition—the courts have ruled the Constitution leaves plenty of room for reasonable public-safety laws that protect people from gun violence.”
Advocates also see a newfound momentum that they don’t want to disrupt, both in the activism inspired by the students speaking out after the deaths of 17 of their classmates and teachers at Marjory Stoneman Douglas High School in Florida, and in the still-small shifts in position among Republican members of Congress. Volsky said the idea of the Second Amendment as a shield against new gun laws “is really a bunch of NRA propaganda.”
And that, more than anything, is why even the left-most flank of the gun-control movement is content to leave the Constitution well enough alone. “In my viewpoint,” Volsky told me toward the end of a long interview, “it is not necessary to rewrite the Second Amendment in order to get to a world with fewer guns.”