The Second Amendment

The following statement, which UCLA law professor Adam Winkler and I crafted, was signed by more than fifty of the nation's most distinguished constitutional law professors. The statement refutes unfounded claims that the Second Amendment precludes Congress from enacting legislation to reduce gun violence in the United States. Although these scholars hold widely divergent views on constitutional interpretation, and often fiercely disagree on a broad range of constitutional issues, they all agree on this question. The statement was submitted today to Congress in anticipation of the beginning of hearings on the proposed legislation.



Statement of Professors of Constitutional Law: The Second Amendment and the Constitutionality of the Proposed Gun Violence Prevention Legislation



Several proposed reforms to the nation's gun laws, including universal background checks and restrictions on high-capacity ammunition magazines and assault weapons, are now pending before Congress. Concerns have been raised that these measures might violate the Second Amendment. We, the undersigned professors with expertise in constitutional law, write to address those concerns.



In 2008, the U.S. Supreme Court held that the Second Amendment, which provides, "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," guarantees an individual's right to have a functional firearm in the home for self-defense. The Court's decision in that case, District of Columbia v. Heller, struck down a D.C. law that effectively barred the use of any firearm for self-defense. The law is now clear that the government may not completely disarm law-abiding, responsible citizens. The Court also made clear, however, that many gun regulations remain constitutionally permissible. "Like most rights," the Court explained, "the right secured by the Second Amendment is not unlimited." Writing for the Court, Justice Antonin Scalia explained that restrictions on "dangerous and unusual" weapons are constitutional and that "nothing in our opinion should be taken to cast doubt" on laws that prohibit "the possession of firearms by felons or the mentally ill" or laws that impose "conditions and qualifications on the commercial sale of arms."



In this sense, Justice Scalia recognized in Heller that, like other constitutional rights, the Second Amendment is not an absolute. The First Amendment, for example, provides that "Congress shall make no law... abridging the freedom of speech," but the Supreme Court has long and consistently held that some types of speech -- for example, defamation, obscenity and threats -- can be regulated; that some people -- for example, public employees, members of the military, students and prisoners -- are subject to greater restrictions on their speech than others; and that the government can reasonably regulate the time, place and manner of speech. As Justice Scalia explained in Heller, the rights guaranteed by the Second Amendment are likewise subject to appropriate regulation in order to enhance public safety.



In acknowledging the presumptive constitutionality of laws designed to prevent gun violence, including restrictions on who has access to firearms and what types of firearms they may have, Heller is consistent with the history of the right to keep and bear arms. The founding fathers who wrote and ratified the Second Amendment also had laws to keep guns out of the hands of people thought to be untrustworthy. Such laws were necessary to ensure that the citizen militia referenced in the Second Amendment was "well regulated." In the 1800s, many states restricted the sale or public possession of concealable firearms. In the early twentieth century, the federal government restricted access to unusually dangerous weapons, such as machine guns, and states barred people convicted of certain felonies from possessing firearms. Laws such as these were routinely upheld by the courts, which recognized the legitimacy of legislative efforts to keep the most dangerous weapons out of the hands of the most dangerous people.



While the permissibility of any particular reform depends on its details, the reforms currently being considered by Congress are clearly consistent with the Second Amendment. We express no view on the effectiveness or desirability of the policies reflected in the various proposals, but we all agree that none infringes the core right identified by the Court in Heller.



Universal background checks, especially those conducted instantaneously through the National Instant Background Check System, do not impose a significant burden on law-abiding citizens. Yet background checks may provide an important safeguard against easy access to guns by members of criminal street gangs, other felons and the mentally ill. As with other rights that have eligibility criteria, such as the right to vote, the right to keep and bear arms is not offended by neutral measures designed to ensure that only eligible, law-abiding citizens exercise the right. Moreover, background checks imposed at the point of sale are typical of the "conditions and qualifications on the commercial sale of arms" recognized by the Supreme Court in Heller.



Restrictions on the manufacture and sale of high-capacity ammunition magazines and assault weapons are also consistent with the Second Amendment. In a recent opinion authored by Judge Douglas Ginsburg and joined by Judge Karen Henderson, the U.S. Court of Appeals for the District of Columbia Circuit held that such regulations are consistent with the Second Amendment and with the Supreme Court's decision in Heller. The court of appeals recognized such weapons and magazines are not necessary for individual self-defense -- what Heller called the "core lawful purpose" of the Second Amendment. Restrictions on high-capacity magazines and assault weapons, the court of appeals held, do "not effectively disarm individuals or substantially affect their ability to defend themselves." The Second Amendment, like the First Amendment, does not prevent lawmakers from enacting reasonable regulations that do not seriously interfere with the core right guaranteed by the Constitution.



The Supreme Court has clearly held that the Second Amendment preserves the right of law-abiding citizens to have a firearm in the home for self-defense. As both the historical tradition of the right to bear arms and the Court's decision suggest, reasonable and limited measures to enhance public safety that do not unduly burden that right are consistent with the Second Amendment.



Signed,



Bruce Ackerman

Sterling Professor of Law and Political Science, Yale Law School



Albert W. Alschuler

Julius Kreeger Professor Emeritus, The University of Chicago Law School



Mitchell N. Berman

Richard Dale Endowed Chair in Law, The University of Texas School of Law



Ashutosh Bhagwat, Professor of Law

UC Davis School of Law



Joseph Blocher

Associate Professor of Law, Duke Law School



Lee C. Bollinger

President, Columbia University



Rebecca L. Brown

Newton Professor of Constitutional Law, USC Gould School of Law



Alan Brownstein

Professor of Law, Boochever and Bird Chair, UC Davis School of Law



Erwin Chemerinsky

Dean and Distinguished Professor of Law, UC Irvine School of Law



Dan T. Coenen

University Professor and Harmon W. Caldwell Chair, University of Georgia Law



Walter E. Dellinger III

Douglas B. Maggs Emeritus Professor of Law, Duke Law School



Michael C. Dorf

Robert S. Stevens Professor of Law, Cornell University Law School



Lee Epstein

Provost Professor and Rader Family Trustee Chair in Law, USC Gould School of Law



Richard A. Epstein

Laurence A. Tisch Professor of Law, New York University School of Law



Daniel A. Farber

Sho Sato Professor of Law, UC Berkeley School of Law



Owen M. Fiss

Sterling Professor Emeritus of Law and Professorial Lecturer in Law, Yale Law School



Charles Fried

Beneficial Professor of Law, Harvard Law School



Barry Friedman

Jacob D. Fuchsberg Professor of Law, New York University School of Law



Risa Goluboff

Justice Thurgood Marshall Professor of Law, The University of Virginia School of Law



Jamal Greene

Professor of Law, Columbia Law School



H. Kent Greenfield

Professor of Law and Law Fund Research Scholar, Boston College Law School



Ariela Gross

John B. and Alice R. Sharp Professor of Law and History, USC Gould School of Law



Roderick M. Hills, Jr.,

William T. Comfort, III Professor of Law, New York University School of Law



Samuel Issacharoff

Bonnie and Richard Reiss Professor, New York University School of Law



John C. Jeffries, Jr.

David and Mary Harrison Distinguished Professor and former Dean, University of Virginia



Dawn Johnsen

Walter W. Foskett Professor of Law, Indiana University Maurer School of Law



Mark R. Killenbeck

Wylie H. Davis Distinguished Professor of Law, University of Arkansas School of Law



Ronald J. Krotoszynski, Jr.

John S. Stone Chair, Professor of Law, University of Alabama



Carlton F.W. Larson

Professor of Law, UC Davis School of Law



Lawrence Lessig

Roy L. Furman Professor of Law, Harvard Law School



Sanford V. Levinson

W. St. John Garwood and W. St. John Garwood, Jr., Centennial Chair, University of Texas



William P. Marshall

William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina



Frank I. Michelman

Robert Walmsley University Professor, Emeritus, Harvard Law School



Darrell Miller

Professor of Law, University of Cincinnati College of Law



Alan B. Morrison

Lerner Family Associate Dean, The George Washington University Law School



Gene R. Nichol

Boyd Tinsley Distinguished Professor of Law, UNC School of Law



Spencer A. Overton

Professor of Law, The George Washington University Law School



Eric Posner

Kirkland & Ellis Distinguished Service Professor, The University of Chicago Law School



Lawrence Rosenthal

Professor of Law, Chapman University School of Law



Theodore Ruger

Professor of Law, University of Pennsylvania Law School



Jane S. Schacter

William Nelson Cromwell Professor of Law, Stanford Law School



Stephen J. Schulhofer

Robert B. McKay Professor of Law, New York University School of Law



Neil S. Siegel

Professor of Law and Political Science, Duke Law School



Reva Siegel

Nicholas deB. Katzenbach Professor of Law, Yale Law School



Geoffrey R. Stone

Edward H. Levi Distinguished Service Professor and former Dean, The University of Chicago



David A. Strauss

Gerald Ratner Distinguished Service Professor of Law, The University of Chicago



Laurence H. Tribe

Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard Law School



Mark Tushnet

William Nelson Cromwell Professor of Law, Harvard Law School



Jonathan D. Varat

Professor of Law and former Dean, UCLA School of Law



Keith Wehran

Ashton Phelps Chair of Constitutional Law, Tulane University School of Law



Adam Winkler

Professor of Law, UCLA School of Law



University affiliation provided for identification purposes only.