10 years after Heller: Fiery gun rights rhetoric, but courts back Second Amendment limits

The Supreme Court decided the landmark Second Amendment case District of Columbia v. Heller 10 years ago Tuesday, recognizing for the first time an individual right of “law-abiding, responsible citizens” to have a gun in the home for self-defense. But as students from Parkland to Chicago focus our attention on the scourge of gun violence, it’s important to remember what Heller also made clear: the constitutional right to keep and bear arms is not absolute. Despite efforts by the National Rifle Association to distort the meaning of that right, courts of all ideological perspectives around the country have overwhelmingly confirmed that there is no conflict between reasonable, commonsense gun laws and the Second Amendment.

Over the past decade, courts have rejected legal challenges to background checks, restrictions on assault weapons and large capacity magazines, prohibitions on gun possession by felons and domestic abusers, and licensing requirements to carry a gun in public. In fact, courts have rejected the vast majority of claims that the Second Amendment precludes the passage or enforcement of gun safety laws — around 90 percent, according to one recently published academic study. The small remainder of cases in which these challenges have been sustained involved unusual laws, including handgun bans, total bans on carrying guns in public, or outlier licensing requirements.

There are limits to the Second Amendment

The explanation for this overwhelming pattern of courts upholding gun laws is not complicated, although it is often ignored in the heated public debate around guns and the Second Amendment. While the Heller decision controversially recognized an individual right to own guns, it also recognized that “Like most rights, the right secured by the Second Amendment is not unlimited.” The Supreme Court emphasized that its decision did not “cast doubt on” laws prohibiting the possession of firearms by felons and people with dangerous mental illnesses; laws forbidding the carrying of firearms in sensitive places like schools; regulations on gun sales; and prohibitions on certain dangerous weapons.

As a result, judges of diverse geographic and political backgrounds have repeatedly upheld reasonable gun laws as consistent with the Second Amendment, recognizing that states and cities have a substantial and important government interest in promoting public safety and reducing gun violence.

More:DeVos decision to ignore role of guns in shootings echoes Bush debacle

On guns, we're as paralyzed as I was the day my nephew was shot: Montana governor

Gun purchase waiting periods are a powerful way to prevent suicides and save lives

When Maryland’s restrictions on assault weapons and large-capacity magazines were challenged, a federal appeals court rejected the argument that the Second Amendment was violated. The same result — no Second Amendment violation — was reached by a federal appeals court in California when gun rights advocates challenged a ten-day waiting period on firearms purchases. Another federal appeals court rejected a challenge to New Jersey’s requirement that only those with “justifiable need” could carry a concealed weapon in public, finding no conflict with the Second Amendment. In all three cases, the Supreme Court denied requests for review, leaving the lower courts’ rulings in place.

Politicians use all-or-nothing rhetoric

Despite this growing body of legal precedent, the gun lobby and its allies continue to deploy an absolutist view of the Second Amendment. When modest actions were proposed in the aftermath of the Sandy Hook and San Bernardino mass shootings, including proposals to expand background checks and require private sellers of large numbers of guns to register as gun dealers, politicians backed by the gun lobby decried the measures as “attempts to undermine Americans’ constitutional right to bear arms,” “unconstitutional,” a "war on the constitution,” and “meant to further erode the Second Amendment.”

This rhetorical invocation of a distorted and absolute version of the Second Amendment sometimes proves powerful in the political realm. But it has fallen flat in the courtroom because it has no grounding in the real Second Amendment as it actually exists and is applied in the legal system. 

After Parkland, Republicans and Democrats came together in a number of states to pass commonsense gun safety laws. But the gun lobby and other gun rights activists have been relentless in attempting to claim the Second Amendment is violated by virtually every one. When Florida recently raised the age for gun purchases to 21 with bipartisan support, the NRA immediately filed a legal challenge. But when the NRA previously sued to strike down the federal law prohibiting gun stores from selling handguns to people under 21, a federal appeals court found no conflict with the Second Amendment.

Other states and cities have enacted prohibitions on large capacity magazines and assault weapons over the last few months, and those too have been met with lawsuits. But when NRA affiliates in the past challenged similar laws in New York, Illinois and  and Maryland, three different federal appeals courts held that each of these laws was consistent with the Second Amendment.

As the public debate continues, it is critical that we ground our understanding of the Second Amendment in what the courts have actually said it means, and not be fooled by the rhetoric of the gun lobby and their beholden politicians. While many obstacles remain as we work to strengthen and enforce our gun laws, Heller and the courts have made clear that the Second Amendment is not one of them.

Eric Tirschwell is the director of litigation and national enforcement policy at Everytown for Gun Safety, and Mark Frassetto is senior counsel, Second Amendment litigation for Everytown.