There are two big problems with this approach: It makes action on gun violence subject to a change in the composition of the Supreme Court, and it fails to address the legitimate desires of law-abiding gun owners. Heller and McDonald were decided by 5-to-4 votes along drearily predictable partisan lines. Should President Trump get to appoint another justice in place of one of the court’s octogenarian liberals, it would probably take a decade or more to undo the existing majority. In the meantime, it’s also drearily predictable that the United States will experience a few mass gun murders each year.
Meanwhile, millions of gun owners fear — probably correctly — that their peaceful ownership and use of firearms would be taken away if the constitutional protection provided by those rulings were lost. Elected representatives could pass stringent legislation addressing, or perhaps banning, gun ownership and use. Other nations without such protection, such as Australia and Britain, have effectively banned handgun ownership for self-defense after their own mass shootings. New Zealand banned private ownership of semiautomatic weapons after the shootings in March at two Christchurch mosques. .
The two groups seem to be at loggerheads, but that is true only as long as a constitutional solution is off the table. Both have the incentive to rethink that decision as the number of mass shootings increases.
A revised Second Amendment could spell out the relationship between public safety and private rights in more detail. It could give clear safeguards for people with no history of legal trouble or mental instability to continue to own guns while giving more authority to the government to guarantee that only people unlikely to misuse guns would have them. The precise details would have to be worked out through negotiations, but the general approach — rights for safe users, prohibitions or heavy regulations for others — could work.
Critics might argue that the prospects for success are too low or that the process would take too long, but one must ask, “Compared with what?” The nation has been arguing over gun regulation since the dramatic rise in handgun crime in the 1960s. No amount of public pressure or circumstance has compelled gun owners to give in. Nor will it: Ordinary people who don’t misuse their guns have no reason to agree to give up their security or their hobbies to satisfy someone else’s theory about how to combat gun violence. This fact is not going to change, making legislative changes difficult even if Heller were overturned.
Constitutional change would also have the advantage of beginning to reduce the role of the Supreme Court in U.S. politics. Before recent decades, people reacted to adverse Supreme Court rulings by seeking constitutional change rather than packing the court with their friends. That’s how we got the 16th Amendment, which in 1913 gave Congress the right to levy an income tax. The amendment was needed because the Supreme Court had ruled that a law establishing an income tax was unconstitutional. If Heller creates a balance between gun rights and public safety that many people dislike, revising that decision through a new amendment would be the appropriate response.
Both sides in this debate need to realize that the other has legitimate points. Too many people die needlessly because of gun laws that don’t keep unstable people from possessing weapons of mass murder. Millions of law-abiding citizens shouldn’t be punished because of the misdeeds of a few evil or sick people. Getting together to discuss a revised Second Amendment might be the only way to get both sides to talk to one another. It also might be the only way to make rapid, politically sustainable progress on one of the United States’ most intractable and disturbing problems.