George T. Conway III is a lawyer in New York. Neal Katyal, a law professor at Georgetown University, previously served as the acting solicitor general of the United States.
The senseless shootings in El Paso and Dayton, Ohio, should lead every American to contemplate what to do about guns. Policymakers have largely been paralyzed, partly because the public debate has been dominated by extremes. The loudest voices on the political left seek to take away as many firearms as it can, of all kinds, and to overturn Supreme Court decisions recognizing the Second Amendment right of individuals to keep and bear arms. The loudest voices on the political right, for their part, oppose virtually all gun regulation, both on policy and constitutional grounds, fearing that a slippery slope will lead to the abolition of firearms.
But both are wrong, because of one simple reality. And acknowledging that reality opens up the space for sensible regulation of firearms, regulation that both owners and non-owners of guns should embrace.
The reality is, guns in America aren’t going away. That’s because the Constitution actually does protect an individual right to keep and bear them. Certainly there was an argument to be made that the Second Amendment didn’t vest individuals with any rights at all, given its reference to a “well regulated Militia.” But as the Supreme Court explained in two landmark decisions, District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), the weight of the evidence — including the Second Amendment’s textual structure and its historical context — makes clear that the right to keep and bear arms wasn’t meant to be confined to members of militias.
The court’s recognition of an individual right to gun ownership should provide the foundation for sensible compromise on the regulation of firearms. In Heller, the justices made clear that reasonable regulations would pass constitutional muster — for example, that the court’s opinion “should not be taken to cast doubt on longstanding prohibitions” of various sorts of firearms ownership.
Liberals should take solace in those limiting constructions of the Second Amendment, and in the fact that in the 11 years since Heller came down, there simply hasn’t been any judicial gutting of gun regulation across the land. More important, the same people who extol the virtues of adherence to judicial precedent when it comes to decisions such as Roe v. Wade should not be heard to urge the overruling of constitutional precedent under the Second Amendment.
Conservatives should take solace in the fact that, because of the Second Amendment and Heller, there can be no slippery slope to abolition. Guns are here to stay, and if you’re a law-abiding and competent citizen, no federal or state authority will ever be able to take them away from you. You may not have the right to every conceivable type of firearm or gun-related gadget conceived of in the two-plus centuries since the nation’s founding (automatic weapons, for example), but you’ll have plenty to choose from.
Given all this, there’s no reason that compromise can’t be reached now on any number of sensible firearms regulations that could enjoy broad public support, even from many gun owners. Take, for example, bills the House passed in February. That legislation would extend the waiting period for background checks from three to 10 days and would close the gun-show loophole, which outrageously allows individuals to buy weapons without any background check whatsoever if they buy their weapons on the Internet or at gun shows. Those reforms would seem pretty basic. Extending the waiting period would have kept the Charleston, S.C., church shooter, Dylann Roof, from getting his gun; and the gun-show loophole is one that the Islamic State — yes, the Islamic State — has urged its members to exploit.
Nothing in the Constitution prevents this type of moderate gun-control legislation, and nothing about the bills would lead the country down any slippery slope. Conservatives may find aspects of the bill to criticize, such as the possibility that its coverage may be too broad, but they would do better for the public — including their gun-owning constituents — to make good-faith suggestions to improve the bill, instead of reflexively blocking it.
It’s time to debate gun legislation on its merits, not to hide behind arguments about judicial precedent or slippery slopes. Recognizing that a constitutional right to gun ownership exists, but that, like other constitutional rights, it can be reasonably regulated, is a crucial first step toward returning sanity to the discussion about gun ownership.
What is true about guns is true about much else in American society today, where the loudest voices are those on the fringes, when much of the country doesn’t want to hear the bickering and just wants some common-sense solutions. The framers of the Constitution designed it to be capacious enough to permit democratic debate and to embrace these practical solutions.