Wednesday, July 22, 2009


Let's get this part out of the way.

I love westerns, and the gunfight (really it was a duel) is a classic scene with which I'm comfortable and in which, when I was younger, I repeatedly fantasized a role for myself. But I grew up a Jewish kid from New York, and I don't like guns.

I had and played with lots of cap guns and an air rifle when I was a kid. I've shot a .22 a couple of times. I've held handguns with varying degrees of pleasure/fascination (mostly depending on my age). I've learned something about how firearms work as a criminal defense lawyer. But I grew up a Jewish kid from New York, and I don't like guns.

I think we'd be better off if they were completely banned. I hate the Second Amendment. I'm a fan of all sorts of gun control.
Heck, I grew up a Jewish kid from New York, and I don't like guns. But I try and be honest about these things. The Second Amendment is part of the Bill of Rights. As such, it has as much clout as, say, the Fourth or the Eighth, both of which I like a great deal. It's the law of the land. And we're stuck with it.

The question, of course, is just what it is with which we're stuck. And that's what I want to talk about today, because the Second Amendment is, frankly, seriously problematic. The place to start any constitutional interpretation, as soon-to-be-Justice Sotomayor told us repeatedly last week, is with the language of the provision at issue. So here's what the Second Amendment says:
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.
Everyone gets that these words put some limitation on the ability of the government to disarm the population. But what sort of limitation?

The central legal issue of the Second Amendment has long been what to make of that initial subordinate clause, "A well regulated Militia, being necessary to the security of a free State."
Is the right to bear arms limited to military and quasi-military forces (police and the national guard, say) or is it somehow an individual right? And if it is an individual right, how far does it go? Is any sort of gun control lawful? Can there be registration? Licensing? Waiting periods? Can there be places one can't go armed? Can there be prohibitions on assault weapons? So called "cop killer" bullets? What about a working tank in the back yard?

The ACLU, for all it's commitment (despite occasional and deeply troubling stumbles) to an expansive view of the Bill of Rights, has never seen the Second Amendment as particularly valuable. It's position has long been that the right it guarantees is collective, not individual. The NRA has taken the position, at least roughly, that the Second Amendment provides for an individual right and the right is essentially without limit. Scholarship has been, frankly, less than revealing. And there it's stood. But let me go back there for a second.

I've thought for some time now that the ACLU was wrong. If the Second Amendment provides only for a collective right, then it's essentially meaningless. Besides, the Amendment doesn't say that the militia's right to bear arms shall not be abridged. It's the people's right.
But what then? And why?

Last year, the Supreme Court made an effort to give us an answer. In District of Columbia v. Heller, the Court told us that the right is individual though not unlimited and that D.C.'s ban on handguns in the home was unconstitutional. That's fair enough, and it's probably the right result. But, frankly, it's also problematic, and that's what I want to say something about. To be clear, there are three rulings in Heller:
  1. The Second Amendment guarantees some form of an individual right to bear arms.
  2. The individual right guaranteed by the Second Amendment is not unlimited.
  3. Whatever limitations on the individual right to bear arms may be permitted by the Second Amendment, D.C.'s expansive ban on handguns in the home exceeds them.
Let's take them in turn.

The Second Amendment guarantees some form of an individual right to bear arms

Although surrounded by a wealth of historic citation and analysis, it seems to me that both Scalia's majority opinion and the dissent on this point by Stevens miss the point.

Stevens sees in the Amendment no more than the rights of the individual states to maintain armed militias should they so desire. They no longer do. The Amendment is then but a historic artifact rather like the Third, a matter of great moment when enacted, a museum piece today.

Scalia, writing for a majority intent on assuring that the D.C. ordinance should be held unconstitutional, sees in the reference to the militia a statement of but one purpose for the right to bear arms. People in revolutionary times would have used weapons to protect themselves if they had weapons and were assaulted. (As Dahlia Lithwick pointed out, Kennedy seemed to have a particular concern with the need for people to protect themselves from Grizzely Bears.) That's not inconsistent with militias. Therefore, such self-defense is a purpose of the Amendment.

I think it's both simpler and more troublesome than that. The point of the militia, as the languge of the subordinate clause makes clear, is to ensure "the security of a free State." I take "State" here to refer not to the individual states but to the polity. It is essential for a free society that there be a militia (well-regulated so that it be competent to do the job), rather than (or in addition to) a standing army.

The only sensible way to read that is that the free people must be able to protect themselves (itself?) against the government. That's what a militia can do that a standing army cannot.
The fear was that the federal government would come and take away Charlton Heston's rifle leaving him unable to protect himself from that government. There's the source and need for an individual right to bear arms.

The people may, at any time as the Declaration of Independence says (see discussion
here), have a duty to overthrow the government again and start anew. The government may try to prevent that by disarming them. The Second Amendment says the government cannot do that.

That reading puts a different spin on the discussion of whether the right is limited or unlimited, and if so, how.

The individual right guaranteed by the Second Amendment is not unlimited.

When I've been called upon to speak to the Second Amendment over the years, I've mostly said what Scalia concludes: I believe the Second Amendment sets out an individual right to bear arms, but like very other provision of the Bill of Rights, it's subject to reasonable regulation, whatever that might mean. When pressed, I've resorted to hyperbole and said that the government can prevent me from keeping nuclear weapons in my back yard.

Breyer, as the champion of the administrative state where if the government's regulatory motives are beneficent, the Constitution must be understood to permit its actions (see discussion here), makes the last part of that argument. If it should be that individuals have a right to keep arms, he says, the government can surely limit that right for the greater good. So, for instance, D.C. can say,
Well, you have a right to bear arms, but it's too dangerous for people in the city to do that, so here you can't. You know, the framers wouldn't have actually made the right applicable in the urban jungle if they'd known about it, so we should feel free to say it just doesn't apply here.
I think that's pretty clearly untenable.
Scalia, rightly rejecting that position, finds a long-standing tradition of limitations on the right to bear arms. Those limitations, he says, are presumptively valid, and he offers what he says may not be an exclusive list:
[N]othing in our opinion should 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.
As a self-described originalist, if those limitations have the pedigree Scalia says they do, he can plausibly accept them. (Thomas, who is rather a textualist, when he's adhering to his formal analytical model for judging, should have a harder time, since the Amendment by its own terms allows for no abridgment, but he joined Scalia's opinion.) But the question is, really, why any limitations, and if any, why those?

Do felons not have the right to self-defense? And why should "conditions and qualifications on the commercial sale of arms" be allowed? Aren't commercial sales as consistent with the existence of the militia as the right to self-defense? Is there any princple at work here other than "it's been the law forever"? And on that principle, why should we overturn the forever law and declare the underlying right an individual one?

Whatever limitations on the individual right to bear arms may be permitted by the Second Amendment, D.C.'s expansive ban on handguns in the home exceeds them.

A partial answer is that if the Second Amendment is exclusively about allowing the free people to keep arms to protect themselves from the government - and to overthrow it when necessary - then limitations which don't infringe that are just fine. Felon in possession laws? Sure, what difference does it make to our ability to hold the army at bay. But if that's OK, then so is the DC handgun ban. You're not going to stop a coup d'etat with a .22 on the nighttable.

On the other hand, if that's the purpose, then the conditions and qualifications on commercial sales of armaments are probably unconstitutional. We need those sales.

All of this is to say that the Court got the right answer the wrong way. But there's another step. And here's where I get really uncomfortable with my own analysis.

If the Second Amendment means what I think it has to mean. If the Second Amendment guarantees the people the right to bear arms in order to prevent the government from becoming tryranical. If the Second Amendment is there so that free Americans can protect themselves from an oppressive government and so that, in a pinch, they can fulfill the duty of revolution and overthrow that government. If all that's so. Then my hyperbolic, jokey response about how, whatever limitations there may be on the Second Amendment right, the government can surely prevent me from keeping an atom bomb in my backyard, is simply wrong.

The framers couldn't have imagined what they were doing because they couldn't imagine the weaponry of today. But if the Second Amendment guarantees the people the right to keep and bear arms so that they can resist, and even overthrow the government, it must guarantee them the right to keep and bear arms of the sort that can, at least in principle, carry out that task. If the Feds can have a Patriot Missile, so can I. In this day and age, a blunderbuss won't do the job.

That's the principled argument no Justice had the courage to make.

The honest alternative (also one no Justice had the courage to make) acknowledges but refuses to obey the principle. It goes like this: Although the framers adopted the Second Amendment to allow the people the means to keep the government at bay and overthrow it if things got too bad, today's weapons are so dangerous that the right cannot be enforced. Therefore, although the Second Amendment is part of the Constitution, it's a part we must ignore because it's too risky to acknowledge.

Like I said, I grew up a Jewish kid from New York, and I don't like guns. But I think I have a right to a tank.


I just (morning of the 24th) read over what I wrote, and found that I both declared the D.C. home hangun ban perfectly proper because it doesn't infringe on the right to arm oneself to overthrow the government (" You're not going to stop a coup d'etat with a .22 on the nighttable") and said that the Court got the right answer (it's improper) albeit for the wrong reason.

The Court was right about the individual right to bear arms - a right I think much broader and more radical and more dangerous than the Court allowed - and wrong about the D.C. handgun ban because it doesn't infringe on the nature of that right. At least, that's my position unless I'm going to become a strict textualist, and I'm not there. (On the other hand, it's taken me decades to reach this view of the Second Amendment, so who's to say.)


  1. Excellent! As a pro-gun member of the militia in my state, I can tell you that your conclusion is a hard one for even ardent Second Amendment supporters to reach. I think we all know it deep down, but what does it say about us if we actually admit it? Well, maybe it just makes us honest. It also makes a good argument for the fedgov to not develop or possess nuclear arms. Heck, our fedgov not having nuclear arms might make them honest, too, and even a tad more humble when dealing with other nations.


  2. Thanks for the kind words. When (if) you seem my clarification and update you may take some of them back.

    And you may be onto something with the thought that my understanding of the Second Amendment is something of an argument for the government to cut back on some of its weapons programs.

  3. i think you have it totally back ward like the courts. If you look at history what that right actually is there for is to force the govt to leave guns alone. If you think i'm wrong just remember the ONLY reason they were able to WRITE IT in the first place is THEY ALL HAD GUNS. Their RIGHT TO THOSE GUNS PREDATES the constution.