August 11, 2016 by David K. Sutton
Does Hillary Clinton Want To Abolish The 2nd Amendment?
It took just twenty-four hours for Donald Trump to torpedo his latest “reboot.” One day after an economic speech intended to put his campaign back on track, Trump suggested “Second Amendment people” might be able to stop Hillary Clinton from appointing “judges.” While his comment could be viewed as ambiguous in a sanitized context, it’s hardly a stretch for someone to interpret it to mean an armed uprising against a U.S. president. Even if it was just a joke, and even if we can debate the meaning, the problem is not the intent, the problem is that it was said at all.
Potentially overlooked is Trump’s insinuation that Clinton wants to nullify the Second Amendment. “Hillary wants to abolish, essentially abolish, the Second Amendment,” said Trump. It requires a leap of logic informed by absolutist ideology to believe Clinton wants to abolish the Second Amendment, and it certainly doesn’t recognize the difficult process to do so.
Let’s be clear, no president has the power to abolish a constitutional amendment. It requires two-thirds of both the House and Senate and three-quarters of state legislatures to ratify a new amendment. It doesn’t matter who Clinton picks to fill a Supreme Court seat or a federal seat, because no court can repeal a constitutional amendment.
But I know that’s not good enough for some.
While Clinton has never said she supports repeal of the Second Amendment, many of her detractors believe she will appoint Supreme Court justices who will reinterpret the meaning of the Second Amendment, and in their minds that is the same thing as repeal. So when Trump says Clinton wants to “essentially abolish the Second Amendment,” her critics believe that to be a true statement only if you remove the word “essentially.” The interpretation of the Second Amendment they believe is the true spirit of the Founding Fathers is the 2008 D.C. v. Heller Supreme Court opinion, but that belief is beside the point (more on that in a moment). It may come as a surprise for some, but with a 5-4 decision, that 2008 case was the first time the Supreme Court interpreted the Second Amendment as a guarantee of an individual’s right to own a firearm for self-defense.
The belief that Clinton wants to abolish the Second Amendment hinges on this 2008 ruling. Except it shouldn’t. Because the only way the 2008 ruling is the gun rights linchpin is for us to believe we did not already have the right to own a firearm. We did. But even with a hypothetical absence of a Second Amendment, do we actually believe people would not assert their right to own a firearm? Moreover, that 2008 ruling did make it clear the Second Amendment is not absolute.
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
In other words, the Second Amendment and the 2008 D.C. v. Heller decision leaves the door open for sensible gun regulations, which is in-line with Clinton’s position on guns.
Expand background checks to more gun sales—including by closing the gun show and internet sales loopholes—and strengthen the background check system by getting rid of the so-called “Charleston Loophole.”
Take on the gun lobby by removing the industry’s sweeping legal protection for illegal and irresponsible actions (which makes it almost impossible for people to hold them accountable), and revoking licenses from dealers who break the law.
Keep guns out of the hands of domestic abusers, other violent criminals, and the severely mentally ill by supporting laws that stop domestic abusers from buying and owning guns, making it a federal crime for someone to intentionally buy a gun for a person prohibited from owning one, and closing the loopholes that allow people suffering from severe mental illness to purchase and own guns. She will also support work to keep military-style weapons off our streets.
But I know I have not satisfied those who believe Clinton wants to abolish the Second Amendment, again, because they believe she will appoint justices with a different interpretation. Yes, its very possible Clinton would appoint justices who disagree with the D.C. v. Heller majority opinion, but that also happens to be the way our representative democracy works, and it doesn’t mean Clinton holds an abolitionist view of the Second Amendment.
Because even if Clinton were to nominate those justices, and even if those justices were to pass Senate confirmation, and even if the new-look Supreme Court were to offer a different interpretation, the Second Amendment would still stand, individuals could still purchase and own firearms, and her detractors would still be wrong when they say Clinton wants to abolish the Second Amendment. But more importantly, they would be wrong in their belief that a different interpretation of the Second Amendment means abolishing your right to own a firearm, a point already proven by our very history, and independent of one’s interpretation of the Second Amendment. Or in other words, rights are not limited to those enumerated within the Bill of Rights (i.e. “The Ninth Amendment“).