As promised, I am going to blog about the 2nd Amendment and the right to bear arms. Before you read this post, ask yourself this question:
Does the 2nd Amendment to the United States Constitution guarantee an individual right to bear arms?
Yes______ No______
I want you to answer that question without looking at any outside sources. Just give a one-word answer based on what you think. Then I want you to answer a slightly more involved question: why? I know there are those of you reading this who
have read the 2nd Amendment and do know what it actually says, but, frankly, I think most people don't know what it says. Before I started my legal writing brief this semester, the only thing I knew about the 2nd Amendment was that it says something about the right to bear arms and that those pro-gun control people don't seem to care about infringing it. However, knowing exactly what the 2nd Amendment actually says is crucial to understanding the debate over it. That's primarily what this post will be about. I want to explain in simple terms (because I have just a basic understanding of it) the debate over the 2nd Amendment and why there is so much controversy over it. Why am I posting about this?
1. This is an interesting and maybe crucial constitutional debate.
2. The Supreme Court will hear oral arguments tomorrow morning in
District of Columbia v. Heller (07-290). I will explain later why this is so interesting.
3. If I just figured out what the core debate was over the 2nd Amendment, there are probably other people out there who don't know what it's about. And it's fun to share something new when you learn it.
Let me preface the remainder of this post by saying that 1) there's a lot more to the debate over the meaning of the 2nd Amendment than I can cover in one relatively short blog post - and there's a lot that I haven't looked at yet; and 2) it is not because I attend a liberal law school that I am positing that there is a legitimate debate over what the 2nd Amendment guarantees and that I think the position that it guarantees an individual right is on shakier ground than most probably think. I do attend what many would consider to be a liberal law school, but trust me - it's not turning me into a liberal. In fact, I haven't heard one word about the 2nd Amendment in any of my classes so far. I started investigating on my own in conjunction with a brief I'm writing. For purposes of the brief in this hypothetical criminal case, half of us are representing the United States (as prosecution) and half of us the defendant (a police officer). I'm representing the United States, and in my brief, I have to argue for the collective rights theory in order to defeat the defendant's argument that his 2nd Amendment rights have been violated. My research consisted of reading the only Supreme Court case that deals with this issue, reading several appeals court opinions, looking over some amici briefs for the case that will be heard tomorrow, and most importantly, reading and thinking about the text of the Amendment myself. There are plenty of constitutional scholars out there who take the individual rights view - so don't think that liberal academics all take the collective rights view. Sorry to throw those terms out before I explain what they mean, but I just wanted to emphasize the fact that this is an issue over which academics are deeply divided (and not on party lines).
I would guess that "yes" would be most people's response to the question of whether the 2nd Amendment guarantees an individual right to bear arms. As to the why...I'm not sure what I would have said a few weeks ago...
The 2nd Amendment, ratified in 1791, reads as follows:
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.
Constitutional theorists are thus divided into 2 camps when it comes to the 2nd Amendment (I'm leaving out the sophisticated rights camp for now): 1) the individual rights camp and 2) the collective rights camp. Individual rights theorists believe that the 2nd Amendment guarantees an individual citizen's right to keep and bear arms. They point to the language "the right of the people" to support their interpretation. Thus, any laws that tend to limit that right (e.g. gun control laws) are susceptible to a constitutional challenge based on the 2nd Amendment. In contrast, collective rights theorists claim that the 2nd Amendment guarantees only a collective right to bear arms. What does this mean? Well, a collective right to bear arms is a right to bear arms in the context of a well-regulated state militia. You can see where they get this interpretation - right from the text of the Amendment. The idea is that the reason the 2nd Amendment was written was to prevent the federal government from crushing the states - to guarantee the right of the states to have organized militias made up of citizens that would be able to defend themselves against the strong central government put into place by the newly-ratified Constitution (the previous government - i.e. the one before our current Constitution, the Articles of Confederation [1777-1788] - was abolished and replaced with our Constitution because the central government was so weak that it couldn't accomplish anything). So a collective rights theorist would say that the 2nd Amendment guarantees the right of the people to keep and bear arms as a member of a well-regulated state militia. The 2nd Amendment does not, however, says the collective rights theorist, guarantee the right of Joe Blow Citizen to keep a gun in his closet or carry it around in his suitcase.
I haven't settled my opinion on this debate yet, but I do think that it is worthy of a little pondering. I think conservatives tend to have a knee-jerk reaction about the 2nd Amendment. Now, don't take this the wrong way, conservatives!
I'm a conservative. But I think we need to know what the issues turn on and to think them through. I know that there are plenty of conservatives who
have thought through this issue, and they think that the most accurate reading of the Amendment is that it guarantees an individual right. But I think there are also plenty who haven't - and I think that people tend, if they want something bad enough policy-wise and hear enough people saying it, to just assume that it's true and start saying it themselves. This is exactly what people who are so gung ho about separation of church and state have done. They want separation of church and state, and they've heard it said so much that they actually believe it's in the Constitution. Even people who know that the exact phrase doesn't appear in the Constitution just assume that the First Amendment should be read that way.
Both sides have evidence of the Framers' intent in writing the Amendment. Why is it necessary to look at the Framers' intent in order to know how this Amendment should be interpreted? Well, conservative constitutional scholars believe that the Constitution should be interpreted in accordance with the Founders' intent. What did the Founders
mean when they wrote the Constitution and its amendments? The Constitution is not a "living document" that should be interpreted to mean what current social consensus says. In order to know what the Constitution means and how it should be applied to current issues, we have to look at the original intent of the Founders. For example, the Establishment Clause in the First Amendment means that Congress may not make a law that
establishes a national religion (e.g. something like "The religion of the United States shall be Islam, and all citizens and residents of the United States shall convert to it.") When you look at the Framers' intent, you can see that this is the best interpretation of that clause.
The 2nd Amendment is no exception to this mode of scrutiny. We need to ask what the Founders actually intended when they wrote this Amendment - not what we think would be the best policy. If we as a society want there to be a constitutionally guaranteed individual right to bear arms, and
if there is
not one currently, then we need to amend the Constitution to add it.
Keep in mind that to say that the 2nd Amendment means that there is a collective, but not an individual, right to bear arms is NOT to say that as a matter of policy we shouldn't have a fundamental right to bear arms. Nor is it saying that Congress
should pass gun control laws or that individuals should not have guns. It merely means that when the Founders wrote the 2nd Amendment, they established a collective, militia right, not an individual right. This is not to say that the Constitution says that individuals MUST not bear arms (that would be completely untenable). It means that the Constitution does not guarantee the right of the individual to bear arms unless it's in connection with a well-regulated militia. The resulting consequence is that legislation tending to limit the ability of individuals to carry guns may not be challenged on constitutional grounds. The potential consequence of this is that Congress could pass a severely restrictive gun law, and it would not be unconstitutional - at least not on 2nd Amendment grounds.
Of course, all of this is theoretical, because the Supreme Court has not made a definitive ruling on the 2nd Amendment. Actually, the last time the Court addressed this issue was almost 80 years ago in
United States v. Miller, 307 U.S. 174 (1939). There is controversy over how broad the holding of this case is, but the majority of federal courts have interpreted
Miller to stand for a collective rights theory. The circuit courts are divided on this issue, however. Enter
District of Columbia v. Heller, the case for which oral arguments will be heard tomorrow. This should prove to be a monumental case, as the Court is expected to make a definitive ruling on whether a law restricting the registration of guns violates the 2nd Amendment. To do that, the Court will have to come down one way or another on the meaning of the 2nd Amendment. The action was brought by a D.C. security guard who was denied a permit to keep a gun in his house. D.C. has one of the most restrictive gun laws in the country (complete ban on all registration of hand guns). The security guard alleges that the statute violates his 2nd Amendment rights and is thus unconstitutional. It'll be very interesting to find out how the Court comes out on this and to examine its rationale. The opinion probably won't come down until late June or so...gives us plenty of time to figure out what we think the 2nd Amendment really means, if we haven't already.
People who respect the Constitution and believe it should be interpreted according to the intent of the Founders need to do so with the whole Constitution, including the 2nd Amendment. Again, I'm not saying that the individual rights theory is not the correct interpretation. But if that is your view, it needs to be your view because you really think that's what the Founders intended - NOT because you believe a fundamental individual right to bear arms makes for good policy.