Constitutional Law

The Second Amendment: The Middle-Path Leads Over a Cliff

COURT EXPECTED TO DECIDE GUNS CASE THIS WEEK

by Carl T. Bogus, Professor of Law at Roger Williams University

[Editor’s note: This upcoming week, the Supreme Court is expected to decide the Second Amendment Case D.C. v. Heller. Professor Bogus reviewed the Supreme Court’s arguments in this blogpost. ACS hosted an online debate on the Second Amendment between Professors Mark Tushnet and Adam Winkler here. And ACS previewed Heller in this panel discussion.]

When it decided to hear its first Second Amendment case in nearly seventy years, the Supreme Court chose to confront a treacherous question.  Because of the unique dynamics of this issue, the case cannot be sensibly resolved by finding middle-ground, even though the justices are surely under pressure to do just that. 

The Court must decide what the Second Amendment means.  The Amendment reads: “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.”

By and large, the debate over the Amendment is between two camps.  One argues the Amendment grants individuals a right to possess weapons for their own purposes (the “individual rights model”).  The other contends it grants people a right to keep and bear arms only within the government-regulated militia (the “collective rights model”).

There is almost no legislative history explaining what James Madison and the First Congress intended when they drafted the Second Amendment.  Advocates on both sides, therefore, look to general concerns of the Founding Period, as well as how it would make sense to construe the provision today.

Individual rights advocates often argue that the Amendment must grant an individual right because otherwise it would not fit into the Bill of Rights.  That argument has less merit than meets the eye.  In 1791, the First Congress proposed not ten but twelve amendments to the states, and three were about governmental structure or federalism: apportioning the House of Representatives; changing congressional salaries; reserving unenumerated power to the states and the people.  At the time, the states ratified only ten of the amendments.

Advocates of the collective rights model believe the Second Amendment is a federalism provision.  Previously, militias were exclusively under state control.  The Constitution, however, placed the militia under joint federal and state control.  Congress, among other things, now had the power to arm the militia.  Anti-Federalists argued that empowering Congress to arm the militia meant Congress could also disarm the militia, whether deliberately or through neglect.  This was especially worrisome in the South, where militias were the bulwark against slave revolt.  The Second Amendment fixed this problem.  Its essence was that if Congress failed to arm the militia, the states or militia members themselves could do so.

Individual right advocates believe the Second Amendment is about something else entirely.  In endorsing the individual rights model, the lower court said the Founders intended the Amendment to protect two rights: (1) “the right to defend oneself against attacks by lawless individuals;” and (2) the right “to resist and throw off a tyrannical government.” 

The self-defense rationale is unlikely to survive scrutiny by the Supreme Court.  Of course citizens have rights of self-defense, but those rights are rooted in state law – they are generally expressed as a defense to a homicide or assault charge – and the Founders had no reason to incorporate them into the federal constitution.  Moreover, it is nonsensical to read the Amendment as saying:  A well regulated Militia, being necessary to the security of a free State, people may have guns for self-defense.

It is this second rationale – often called the insurrectionist theory – that animates much of the gun-rights literature.  This is what motivated Charlton Heston to hold a musket above his head and declare, “From my cold, dead hands.” However, the idea that people have a right to arm themselves to go to war with their own government is antithetical to constitutional democracy and the rule of law.  The ultimate protection against tyranny is the entire Constitution – the vote, separation of powers, freedom of speech and press, an independent judiciary, and all of the other checks against concentrated power.  What is more fundamental to our system of government than the idea that the people must resolve differences through political and judicial means, and not through force of arms? 

The Department of Justice has suggested that the Court take a middle path.  It has asked the Court to hold that the Second Amendment grants an individual right but, like all rights, one that is subject to reasonable restrictions.  Under this approach, the Court would not declare the District of Columbia’s ban on handgun ownership to be unconstitutional per se; rather, it would ask the trial court to hold a hearing to examine whether under all circumstances, including the District’s legitimate need to address crime, a handgun ban unduly infringes upon Second Amendment rights.         

But notwithstanding its superficial appeal, the middle path leads over a cliff.  If the Second Amendment is a check on governmental tyranny, then it provides greater protection for weapons that are necessary to go to war with the United States military.  An individual would have a greater right to possess a machine gun or a rocket-propelled grenade launcher than a bolt-action .22.

Of course, the Court would never so hold.  But the Court is more than a tribunal that decides technical issues of law.  For better or worse, it is a teacher to the nation – an authoritative voice enunciating the precepts of our Republic.  It nobly fulfilled that role when it declared racial segregation to be unconstitutional.  If it is to rise to the occasion in this case, it will expressly reject the insurrectionist theory.  Anything less will give a legitimacy to the view that the people have a right to arm themselves in the event they believe the government has become tyrannical – a view that was held not by James Madison or George Washington but by John Wilkes Booth and Timothy McVeigh.

Full post as published by ACS Blog on June 20, 2008 (boomark / email).