When it comes to gun bans, the barrier is the Second Amendment, not the gun lobby

As the nation mourns another massacre of children, we again try to make sense of the senseless. It is unimaginable and yet all too familiar. Within minutes of the killing of 19 children and two teachers at Robb Elementary School in Uvalde, Texas, a familiar cycle has emerged — grief coupled with angry demands for gun reforms. 

President Biden used his initial remarks to denounce the gun lobby and demand gun control. The president spoke passionately and movingly on this loss but, after roughly a dozen lines, he turned to the politics of gun control, asking: “When in God’s name are we going to stand up to the gun lobby? When in God’s name will we do what we all know in our gut needs to be done?”

It is a virtual mantra after massacres, as politicians pledge to stop gun violence while denouncing their opponents as facilitating the carnage. 

The gun lobby, backed by millions of gun owners, is indeed a powerful political force. But it is not the gun lobby but the Constitution that is the greatest obstacle to some of these calls for gun bans or limits. If we want to get something done, we will need to be honest and nonpartisan, a challenge that previously has proven too much for our leaders. There is a limited range of movement for legislation, given the constitutional right to bear arms and controlling constitutional precedent.

In discussing “common sense gun laws,” the president once again denounced the availability of what he collectively called “assault weapons,” a common reference to such popular models as the AR-15. “What in God’s name do you need an assault weapon for, except to kill someone?” the president asked. “Deer aren’t running through the forest with Kevlar vests on, for God’s sake. It’s just sick.”

The call for “common sense” responses to this plague of violence is welcomed, but common sense also requires a common understanding of the realities of gun ownership and gun control.

Take the AR-15. Efforts to ban this model already have failed in the courts on constitutional grounds, though litigation is continuing on that issue. In 2008, the Supreme Court handed down a landmark ruling in District of Columbia v. Heller, recognizing the Second Amendment as encompassing an individual right to bear arms. 

The AR-15 is the most popular gun in America and the number is continuing to rise rapidly, with one AR-15 purchased in every five new firearms sales. These AR-15s clearly are not being purchased for armored deer. Many are purchased for personal and home protection; it also is popular for target shooting and hunting. Many gun owners like the AR-15 because it is modular; depending on the model, you can swap out barrels, bolts and high-capacity magazines, or add a variety of accessories. While it does more damage than a typical handgun, it is not the most powerful gun sold in terms of caliber; many guns have equal or greater calibre.

That is why laws to ban or curtail sales of the AR-15 run into constitutional barriers. Most recently, the U.S. Court of Appeals for the Ninth Circuit struck down a California ban on adults under 21 purchasing semi-automatic weapons like the AR-15. And the Supreme Court has a pending Second Amendment case, New York State Rifle & Pistol Association Inc. v. Bruen, that is likely to further strengthen gun rights this term.

After past tragedies, some of us have cautioned that there is a limited range of options for gun bans, given constitutional protections. There also are practical barriers, with an estimated 393 million guns in the United States and an estimated 72 million gun owners; three out of ten Americans say they have guns. Indeed, gun ownership rose during the pandemic. When former Texas congressman and U.S. Senate candidate Beto O’Rourke declared, “Hell yes, we are going to take your AR-15,” he was widely celebrated on the left. However, even seizing that one type of gun would require confiscation of as many as 15 million weapons.

If the president truly wants a “common sense” response to this tragedy, it needs to be based on reality, not rhetoric. In the past, massacres have been weaponized for political purposes, with measures that are either clearly unconstitutional or largely ineffectual.

When advocates call for banning gun sales, their challenge is not “the gun lobby” but the Second Amendment. Notably, after this latest massacre, film director and leftist activist Michael Moore went on MSNBC to call for the repeal of the Second Amendment. Moore said he does not want “to nickel-and-dime this … we need some really drastic action here.” He insisted we need to accept that “we are a violent people, to begin with. This country was birthed in violence, with genocide of the native people at the barrel of a gun.” Putting aside the hyperbolic language, Moore at least is being honest about what this would take — though a repeal is highly unlikely to garner the needed 38 states to ratify such an amendment.

Instead, we need a national dialogue, not another diatribe on guns.

There are some gun limits that could pass constitutional muster, but they will not materially reduce the number of guns in society or, necessarily, gun violence. There also are a variety of areas that could offer real benefits in reducing such shootings, from badly needed mental health program funding and greater school security to more effective “red flag” laws. 

Many of us are prepared to respond to the president’s call to “to turn this pain into action.” However, when he says we can “do so much more,” we need to be honest with the American people on the range of movement allowed under the Constitution to restrict an individual constitutional right. Otherwise, we will continue this tragic cycle of mass shootings followed by familiar political maneuvering. 

There are 19 children and two teachers who deserve more from all of us.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.