During an interview with ABC's George Stephanopoulos on Sunday, Hillary Clinton reinforced the impression that she does not believe the Second Amendment protects an individual right to arms. Stephanopoulos put the question to her directly, and she dodged it twice (italics added):
Stephanopoulos: Do you believe that an individual's right to bear arms is a constitutional right, that it's not linked to service in a militia?
Clinton: I think that for most of our history, there was a nuanced reading of the Second Amendment until the decision by the late Justice Scalia, and there was no argument until then that localities and states and the federal government had a right, as we do with every amendment, to impose reasonable regulation.
So I believe we can have common-sense gun safety measures consistent with the Second Amendment, and in fact what I have proposed is supported by 90 percent of the American people and more than 75 percent of responsible gun owners.
So that is exactly what I think is constitutionally permissible.
And once again, you have Donald Trump just making outright fabrications, accusing me of something that is absolutely untrue. But I'm going to continue to speak out for comprehensive background checks, closing the gun show loopholes, closing the online loophole, closing the so-called Charleston loophole, reversing the bill that Senator Sanders voted for and I voted against, giving immunity from liability to gun makers and sellers. I think all of that can and should be done, and it is, in my view, consistent with the Constitution.
Stephanopoulos: And the Heller decision also does say there can be some restrictions. But that's not what I asked. I said do you believe…their conclusion that an individual's right to bear arms is a constitutional right?
Clinton: If it is a constitutional right, then it, like every other constitutional right, is subject to reasonable regulation. And what people have done with that decision is to take it as far as they possibly can and reject what has been our history from the very beginning of the republic, where some of the earliest laws that were passed were about firearms.
So I think it's important to recognize that reasonable people can say, as I do, responsible gun owners have a right—I have no objection to that. But the rest of the American public has a right to require certain kinds of regularity, responsible actions to protect everyone else.
Clinton and Stephanopoulos are referring to District of Columbia v. Heller, the 2008 decision in which the Supreme Court recognized that the Second Amendment protects an individual right to armed self-defense. The Court ruled that the District of Columbia's firearm restrictions, which banned handguns and required owners of long guns to keep them disassembled or disabled by trigger locks, were inconsistent with that right. Clinton thinks Heller was wrongly decided, which at the very least means she thinks the District's law was constitutional. As I noted in a column last month, that position is hard to reconcile with a meaningful right to armed self-defense, since the regulations overturned by the Court made it impossible to exercise that right. But it seems clear that Clinton also disagrees with the idea that the Second Amendment protects any sort of individual right to guns. No one who accepts that view would answer a question about whether he does by saying, "If it is a constitutional right…" Clinton is implicitly saying that she does not believe people have a constitutional right to firearms but that even voters who do believe that should still be OK with her gun control proposals.
In that light, the few references to the Second Amendment on Clinton's campaign website make more sense. Four out of 11 scold people—NRA leaders, Republican presidential candidates (here and here), and potential Supreme Court nominees listed by Donald Trump—for reading the Second Amendment too broadly. Here are the other Second Amendment mentions:
1. Former U.S. Rep Gabrielle Giffords (D-Ariz.), who was gravely injured in a Tucson mass shooting five years ago, and her husband say Clinton's gun control agenda "would help reduce gun violence and save lives—all while respecting the Second Amendment rights of responsible gun owners."
2. Nelba Márquez-Greene, the mother of a 6-year-old girl killed in the 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut, says "we need a candidate that will balance Second Amendment protection with the protection of human life."
3. Campaign staffer Elizabeth Chan describes President Obama's executive actions regarding guns as "important steps that will respect the Second Amendment while working to protect our families and communities from gun violence."
4. In a transcript of remarks that Clinton made at an April 21 forum on gun violence, she says her proposals are "consistent with the Second Amendment."
5. In another speech the next day, Clinton says "we can't ignore the Second Amendment."
6. In yet another speech the day after that, Clinton says, "There is no doubt in my mind that we can do this consistent with the Second Amendment of the Constitution."
7. A quote from a Las Vegas Sun editorial agrees that "none of these regulatory measures would violate the Second Amendment."
Conspicuously missing: a statement by Clinton or one of her surrogates affirming that the Second Amendment has anything to do with individual rights. Giffords says so, and Márquez-Greene implies it. But not Clinton or anyone speaking on her behalf.
If you don't think the Second Amendment protects an individual right to keep and bear arms, of course, it is obvious that any gun control proposal will be consistent with the Second Amendment. That includes not just the measures Clinton is now touting (which are themselves arguably unconstitutional) but more ambitious policies, such as the national system of handgun licensing and registration Clinton used to advocate and the Australian-style mass confiscation she openly admires. Contrary to what Clinton claims, an understanding of the Second Amendment that lets politicians impose whatever gun restrictions strike their fancy, including outright bans, is anything but "a nuanced reading."
Clinton's deliberately evasive approach to this issue contrasts with the positions taken by the Democratic Party's platform in the last three presidential elections. In 2012 and 2008, Democrats said, "We recognize that the individual right to bear arms is an important part of the American tradition, and we will preserve Americans' Second Amendment right to own and use firearms." In 2004, they promised to "protect Americans' Second Amendment right to own firearms."
That language is notably stronger than the corresponding plank in 2000, when many Democrats blamed Al Gore's defeat on his gun control advocacy. The 2000 platform affirmed "the rights of hunters, sportsmen, and legitimate gun owners" but did not tie them to the Constitution or the Second Amendment. In 1996, when Clinton's husband ran for re-election, the Democrats bragged about his gun control accomplishments. while adding that "we oppose efforts to restrict weapons used for legitimate sporting purposes, and we are proud that not one hunter or sportsman was forced to change guns because of the assault weapons ban." In 1992, when Bill Clinton was elected to his first term, the Democrats likewise said "we do not support efforts to restrict weapons used for legitimate hunting and sporting purposes."
In addition to omitting any reference to the Constitution, the 1992, 1996, and 2000 platforms ignored self-defense, which the Supreme Court recognized as "the core lawful purpose" of the Second Amendment. Clinton essentially has reverted to that earlier Democratic position, promising not to interfere with hunting, target shooting, or gun collecting while avoiding the subject of self-defense and the language of rights. (Notice how, in her interview with Stephanopoulos, she began to say that "responsible gun owners have a right…" but was apparently incapable of finishing the sentence.) Clinton's twist is that she is willing to utter the phrase "the Second Amendment," but without any explanation of what it means to her, assuming it means anything at all.
[via Jonathan Adler]