Why the Second Amendment may be overstated in the gun debate

Contributing sentiments towards policy:

67% : "But the Second Amendment gets thrown around politically in a way that's not based in law."
62% : The debate around the Second Amendment (and why some say it might be overrated)
60% : But if the purpose of the debate is to reduce the tragic human toll of gun violence, the focus on Second Amendment is often misplaced, according to many experts on guns and the Constitution.
59% : The judge's decision did not hang on the Second Amendment but rather a violation of Colorado's preemption law.
58% : Adam Winkler, a professor of law at the UCLA School of Law, also said the Second Amendment is losing its legal relevance in distinguishing lawful policies from unlawful ones as the gap between what he calls the "judicial Second Amendment" and the "aspirational Second Amendment" widens.
58% : The effort picked up momentum when a challenge, on Second Amendment grounds, to a local ordinance in Illinois banning handgun ownership failed in 1982 -- years ahead of the 2008 Heller decision.
58% : "The gun debate has gone far beyond judicial interpretations of the Second Amendment and these days has much more to do with personal, political and partisan identity," he said.
56% : "In the judicial Second Amendment, gun rights advocates haven't found that much protection," Winkler said.
56% : Allison Anderman, senior counsel at the Giffords Law Center to Prevent Gun Violence, stressed that, in part because of the influence of state statutes, the Second Amendment should not be a barrier to gun regulation.
55% : There are a few laws many experts say bolster gun rights in ways the Second Amendment does not explicitly require.
54% : "State law is embracing such a robust, anti-regulatory view of the right to keep and bear arms that the judicial Second Amendment, at least as currently construed, seems likely to have less and less to say about the shape of America's gun laws."Winkler told ABC News the aspirational or "political" Second Amendment has become the basis for expanding gun rights in the last 40 years.
54% : "Where they found protection was by getting state legislatures, in the name of the Second Amendment, to legislate for permissive gun laws."
54% : There's also the presence of "permitless carry regimes," said Jake Charles, another gun law expert at Duke University, which is when legislatures interpret the Second Amendment as giving individuals the right to bear arms in public without a permit, an interpretation the Supreme Court has not made.
53% : "This collection of laws is giving individuals lots of protection for gun-related activity that the Second Amendment would not necessarily require, and certainly, and in almost all of these instances, that no lower court has said the Second Amendment would require."
53% : "There's a difference between the Second Amendment as interpreted and applied by courts and the Second Amendment as it's invoked in political discussions.
53% : Permitless or "constitutional carry" is not something the Supreme Court's reading of the Second Amendment currently calls for.
52% : And for many gun rights advocates, the political version of the Second Amendment is quite a bit more gun protective than the Second Amendment as the Supreme Court and lower courts have applied it," he said.
52% : And they do so using the rhetoric of the Second Amendment, even though nothing about the Second Amendment necessarily requires the state to pass such legislation," said Darrell Miller, another expert on gun law at Duke University School of Law.
51% : The role of the Second Amendment, like many constitutional rights, is to put limits on what regulations the federal government can pass, and scholars and lawyers have debated its scope since it was ratified in 1791.
51% : Blocher agreed and argued the Second Amendment debate is among the most partisan in the nation.
50% : It goes back to that widening gap between the judicial Second Amendment as the courts interpret it and the aspirational Second Amendment as used in politics, according to Winkler and Blocher.
48% : The Second Amendment of the U.S. Constitution reads in full:"A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
47% : Joseph Blocher, professor of law and co-director of the Center for Firearms Law at Duke Law School, described the patchwork of state laws that exists across the country as a "buffer zone" for the Second Amendment.
47% : The court expanded private gun ownership protection two years later in McDonald v. City of Chicago, determining that state and local governments are also bound to the Second Amendment.
46% : "The aspirational Second Amendment is overtaking the judicial Second Amendment in American law," he wrote in the Indiana Law Journal in 2018, a sentiment he repeated in a recent interview with ABC News.
43% : In the bitter debate over gun control, battle lines are often drawn around the Second Amendment, with many in favor of gun rights pointing to it as the source of their constitutional authority to bear arms, and some in favor of tighter gun control disagreeing with that interpretation.
40% : The latter is "far more hostile to gun laws than the judicial one," he said -- and also more prevalent.
39% : The Missing Movement for Gun Control in America.

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