A New Call to Arms: Rewriting Second Amendment Threats

  • Date:
  • April 13th, 2022

By: Jody Lyneé Madeira

The Protection of Lawful Commerce in Arms Act (PLCAA), codified at 15 U.S.C. § 7901 et seq., has nearly banished the specter of civil liability for covered gun industry entities. PLCAA was predicated on the claim that gun industry actors, including firearm manufacturers and sellers, were under siege from baseless lawsuits founded on novel legal theories. Prior to its passage, several state courts had held that these entities could be held responsible for knowingly or recklessly distributing their products through sketchy sellers, essentially turning a blind eye to business practices that contributed to gun violence.

In addition to its legal consequences, however, PLCAA had other social and cultural effects. It has helped to establish and reinforce a new narrative supporting contemporary gun rights state legislation. The claim that the firearms industry is under siege has now morphed into the assertion that the Second Amendment itself is under assault, that firearms are disfavored, and that those who own, carry, or use firearms are targets of discrimination.

The breadth and assumptions of PLCAA have also influenced recent state gun rights legislative advocacy, incentivizing measures like permitless carry. To personalize the narrative of gun rights “under siege,” gun rights advocates mobilize citizens to testify in legislatures across the country about how state law schemes infringe on their Second Amendment rights. Many of these laws have been on the books for years but were not questioned until recently. Nearly all are based on traditional doctrinal premises such as home rule and the “longstanding regulations” and “sensitive places” distinctions substantiated in Heller. For example, several state legislatures have assumed the mantle of regulating firearms and ammunition, lifting it from the shoulders of municipalities and cities.

One of the more popular deregulation measure seems to be permitless carry, which has swept through the country at an unprecedented pace. Permitless carry is predicated on the idea that the Constitution itself serves as a citizen’s permit to carry (hence its nickname, “Constitutional Carry”). Politicians who support permitless carry legislation often claim that they were merely fulfilling the founding fathers’ commitments and restoring tradition. From this vantage point, all measures that delay the exercise of the Second Amendment right must fall.

Indiana is one of the many states that have wrangled with permitless carry this past legislative term. Gun rights advocates testified before the Indiana General Assembly that permits—which had been made free in 2021—were still an “undue burden.” Although he is charged with defending state law, including the current permitting system, Indiana Attorney General Todd Rokita sent an employee to convey his support for the measure on the grounds that it best effectuated residents’ constitutional rights.

Implicit in permitless carry is the idea that a state has somehow gone “off track,” deviating from the founders’ original intent in enacting the Second Amendment to protect public safety. Supporters speak of “restoring rights,” and have novel ideas for reevaluating how the right to bear arms should be balanced against State police powers. To these individuals, the Second Amendment is a “second class” right. The backlash against this alleged subordination of the Second Amendment also spills over onto firearms and their owners. In its most extreme form, it can encourage fetishization of firearms and their use, a strange preoccupation with preserving all firearms and all owners from stigma, harm, or accountability under all circumstances. One compelling example of this fetishization are state laws prohibiting the destruction of seized firearms. Firearm carry as a behavior is also subject to fetishization. The idea that government is coming between good guys and their guns—even temporarily—is deemed intolerable. For permitless carry advocates, there is now an urgency to effectuate one’s right to carry, a new “call to arms” that must be consummated as speedily as a firearms owner desires.

Thus, PLCAA does more than render the gun industry largely immune from liability. It also paves the way for other state law deregulation schemes. In her article “Dead or Alive: Originalism as Popular Constitutionalism in Heller,” Reva Siegel states, “struggle over the meaning of constitutional memory is a medium through which community in disagreement is forged.” This concept of constitutional memory is critically important; new constructions of constitutional memory are drastically different than past interpretations. Unlike prior iterations of Second Amendment interpretation, gun rights advocates who support measures like permitless carry proselytize a more absolutist construction of the right to bear arms. This reconception has little room for balancing Second Amendment rights against other concerns (including those falling under the 10th Amendment State police powers) or for complying with public safety measures such as obtaining a permit to carry.

In the wake of the Indiana debate over permitless carry, I’ve found myself musing over PLCAA’s larger cultural, social, and policy repercussions. PLCAA attempts to impose a presumption that firearms owners, and firearms as objects, are reasonable and work together responsibly. Under this view, any dysfunction visible comes from uncontrollable externalities, such as criminals. But the very need to pass such sweeping protections for the gun industry suggests that these assumptions do not always hold true, and the distinction between responsible, functional owners and firearms and irresponsible, dysfunctional owners and firearms is more blurry than the gun industry and other stakeholders would like. Instead of meriting a high degree of deregulation, the Second Amendment warrants more stringent measures.

The ways in which we talk about the Second Amendment are also changing, becoming more uncompromising. Many advocates hang their arguments upon the feeble nail of “shall not be infringed,” and maintain that that phrase literally means what it says – that the right to bear arms is absolute, that it cannot be compromised, that it encompasses all or means nothing. Referring to any restrictions on obtaining or carrying a firearm as “undue burdens” casts these behaviors as cut from the same cloth as the decision to get an abortion. Both are enactments of bodily autonomy, in the privacy sense of making choices about what one does with one’s body. Self-defense, the more traditional interest, is of secondary importance.

Discussions of the “responsibilities” that have customarily accompanied the Second Amendment right also are changing. Instead of denoting adherence to state laws like permitting schemes imposed to ensure lawful firearms carry, gun rights advocates now invoke “responsibility” to refer to the duty to effectuate constitutional doctrine as they claim the founding fathers intended – in short, to deregulate as much as possible. Public safety concerns are superseded by these new urgent calls to arms.

Finally, the “danger” that has traditionally motivated the exercise of Second Amendment rights is also altered. The gun industry and gun rights advocates have often referenced the “danger” of criminal Others to make the Second Amendment more commercially, legally, and culturally salient. PLCAA explicitly names this criminal Other as the spark that could light the powder keg of specious litigation, triggering the gun industry’s demise. “Danger” also undergirds the urgent call to arms that is the consequence of unduly burdening the right to carry; bodily autonomy is ostensibly imperiled if one cannot immediately effectuate the right to carry. This allows gun owners to claim victim status when their right to bear arms is delayed or thwarted by state laws like permitting schemes—a key requirement for constructing a new Second Amendment social movement in which delays or denials of the right to carry become marginalization or discrimination. This reconceptualization, in turn, has consequences for defining those who endanger the Second Amendment and its exercise. The new enemies of the Second Amendment are not criminal Others, or even bad guys with guns, but bureaucrats who enact processes that threaten to delay or deny the right to carry, or doctors that counsel patients regarding firearm safety, or family members who bring wrongful death cases against defendants who then claim lawful self-defense.

In reality, these claims of discrimination and marginalization are specious. PLCAA has helped to reinforce the notion that the Second Amendment and its objects and adherents are under attack. These perspectives are dangerous because they suggest that there can be rights without many (or any) responsibilities, which cripples constitutional jurisprudence and eliminates accountability. Far from being devalued, the exercise of the Second Amendment is now incentivized. Moreover, these new conceptions of the call to arms also introduce an ironic point: the gun rights supporters who so highly prioritize self-sufficiency now claim that they need protection from public safety measures promulgated to safeguard everyone, as well as assistance with shoring up the Second Amendment. These new guardians include the state government, which has so often been labeled a bureaucratic enemy of the Second Amendment. In these new constitutional memories that are now being spun, legislative deregulation of firearms is outpacing the judicial precedent that thus far has upheld most firearm regulations. The courts’ future role in these endeavors is increasingly uncertain.

[Ed. Note: This post is part of a series of essays that arose from the Center’s March 2022 Conference on Privatizing the Gun Debate.]