Gilroy. El Paso. Dayton. Midland and Odessa.
At every turn, new scenes of tragedy are supplanted by newer ones. Inevitably, the Second Amendment — enshrining the right to bear arms — is once again thrust into the spotlight.
It’s only a sentence — 27 words — but it has been a subject of fiery debate, having been interpreted, analyzed, and re-analyzed by a bevy of scholars. “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,” it reads.
On Monday, experts at the Free Speech Movement Café at Moffitt Library examined the Second Amendment through the lenses of history, politics, and the law during an event titled “The 2nd Amendment: American Society’s Interpretation Across Time.” Featuring three distinguished UC Berkeley faculty members — Franklin Zimring, professor of law; Brian DeLay, associate professor of history; and Paul Pierson, professor of political science — and moderated by Hannah Shearer, litigation director at Giffords Law Center (named after gun violence survivor and former congresswoman Gabrielle Giffords), the panel was part of the Free Speech Movement Café Educational Programs Committee’s yearly event marking Constitution Day.
Here are five things we learned from the discussion.
1. The Second Amendment’s intent has been historically misinterpreted.
Just what is a well-regulated militia? Was the Second Amendment meant to protect an individual’s rights to a gun?
“That’s the million-dollar question,” said DeLay, the history professor.
According to DeLay, most legitimate scholars of the period — those who consider the social and political context of the constitutional era — say no. At the time, many in America were wary of the new Constitution and the power granted to Congress to establish a national standing army. In the Anti-Federalists’ view, those armies represented a threat to liberty and the sovereignty of states.
The solution? To form a well-regulated militia, or a citizen army composed of men “trained and prepared to act together in coordination for common defense,” DeLay said.
“The overwhelming focus of debate whenever guns were invoked was about military,” he said. “It wasn’t about hunting, it wasn’t about self-defense.”
2. The NRA’s power is in mobilization, not money.
A lot of people talk about about the corrupting influence of big money in politics. But Pierson, the political science professor, contends that the NRA’s outsized influence in Republican politics is not necessarily tied to the power of money. Instead, it’s about its ability to mobilize people.
It wasn’t until recently that the NRA became a serious player in the political money game, he said. But even now, the NRA isn’t one of the major sources of cash. (“It’s not an 800-pound gorilla by any stretch of the imagination,” he said. “There are bigger players around.”)
But what the NRA does have is an undeniable influence over its members. Driven largely by the need to sustain itself as an organization, the NRA has turned up the dial on its messaging, fanning fears of gun control among its followers. The goal? “Making people feel like the stakes are really high,” Pierson said, “and that they are constantly under threat.”
3. Divisions in opinion on gun regulations have deepened in recent years.
If politics feel especially tribal right now, it’s because they are. And the polarized climate extends to the gun debate.
“Through the NRA, gun rights has been one of the important legs of the stool that supports tribalism on the conservative side,” Pierson said.
According to a poll by the Pew Research Center, since 2000, about 75 percent of Democrats say regulating guns is more important than protecting the right of Americans to own guns. In 2000, the majority of Republicans agreed with that (although not by a large margin). More recently, by contrast, around 80 percent of Republicans say protecting the right to own guns is more important.
“It’s not just people’s voting preferences that matter — it’s how intensely they hold those preferences,” Pierson said. “It remains the case (that) the intensity is all on the side of people who are fearful of gun regulation … They vote on these issues.”
4. A new Supreme Court case could change the face of gun rights in America.
In 2008, the Supreme Court upheld an individual’s right to bear arms in the case District of Columbia v. Heller (a ruling which, according to DeLay, sidestepped the most robust historical research on the constitutional era).
The case, extended a few years later to local and state governments, specifically protected one’s right to keep a gun for self-defense in the home — but stopped there. Now, the court will review the right to take that gun into the world, in the case of New York State Rifle and Gun Association v. City of New York. The decision could broaden the scope of the Second Amendment, panelists noted, loosening restrictions on concealed and open carry across the country.
“What the Supreme Court has been doing for a decade is ducking certiorari (when a higher court must review the decisions of lower courts),” said Zimring, the law professor. “They have now accepted one gun case.”
Panelists discussed the political dynamics of the bench and what might tip the scales one way or the other going forward. One factor that might play a part is “institutional legitimacy,” noted Shearer, the litigation director — the idea that the court’s legitimacy could come into question if it were to dramatically expand gun rights at a time when mass shootings shake the nation and polls show broad support for gun regulation.
Chief Justice Roberts in particular, the panelists said, has been known to consider the court’s larger reputation in his decisions, as he did with the Affordable Care Act.
“I see Roberts as a very smart politician who actually has an extremely conservative and ambitious agenda,” Pierson said, “but who also recognizes that, if the court gets too far in front of its skis on a high-profile issue, that can be a problem.”
5. Change can happen.
In response to the pattern of gun violence, activists have spread their message through everything from marches to social media. But is this activism making a difference?
It’s too soon to tell if rallying around gun control will inspire people to vote, Pierson said. Two voter groups with great potential to make a difference on the issue are suburban white women and young people.
“If every age group in the United States voted at the same rates, our politics would be unrecognizable,” he said. “But there are a lot of people who click Likes who don’t vote.”