“Like most
rights, the Second Amendment right is not unlimited. It is not a right to keep
and carry any weapon whatsoever in any manner whatsoever and for whatever
purpose: For example, concealed weapons
prohibitions have been upheld under the Amendment or state analogues. The
Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition of
prohibiting the carrying of dangerous and unusual weapons.” —District of Columbia v. Heller, 2008
(decision by Justice A. Scalia)
So, here is my one-sentence take on the
current gun-control debate: liberals need to stop pretending that the Second
Amendment doesn’t matter; conservatives need to stop pretending that it is the
only thing that matters.
Here is the
longer version:
I believe that the Second Amendment gives
all Americans the right to bear arms. This is—and I believe was always intended
to be—an individual right and not a collective right constrained by how we
choose to define the word “militia.” The
phrase, “a well-regulated militia being necessary to the security of a free
state” is a dependent clause. The phrase “the right of the people to keep and
bear arms shall not be infringed” is a main clause. The purpose of main
clauses is to carry main ideas.
But my beliefs are not just about how the
grammar of a sentence should reflect its logic (which it absolutely should, and if you learn
nothing else in my writing classes you will learn this). The Second Amendment's protection of the right to bear arms flows from the very basic—I would say
fundamental—right to protect oneself and one's family. Do guns always do this?
No. But they sometimes do this, and that is enough, in my book, to make
protecting people’s right to own them a moral imperative.
As a lover of the Constitution, families,
God, safety, and fundamental human rights, I am officially against taking away
everybody’s guns. But then, nobody I know is actually suggesting that we take away everybody’s guns.
I’m sure that somebody somewhere wants to ban guns, but it isn’t going to happen. For one thing, it would be a
practical impossibility (where would we put three hundred million guns?), but
even if it were mathematically possible, it would not be politically possible.
Nor would it even remotely be a good thing to try.
But here’s the thing: the right to bear
arms is not an absolute right. It is not, as Justice Scalia (who is not
actually very liberal) points out, “a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.” It can’t be.
That’s not how rights work in a society where there is more than one of them.
As long as there are different people endowed with various rights, no single right can be
absolute for the simple reason that it will eventually conflict with other
rights. This is frequently called “living in the real world.”
This shouldn’t come as a surprise to
anybody. It is how all of the other rights in the Constitution work. I have a
right to the free exercise of my religion. Like the right to bear arms, this is
an important, but non-absolute right. I’m not just talking about things like
human sacrifice here, which would obviously interfere with the rights of the
sacrificee. I can’t even break a zoning ordinance to build a church. And, no
matter how sincere my beliefs may be, I don’t have a right to ingest
peyote, refuse medical treatment for my child, or (as my Mormon ancestors found
out not too long ago) engage in a consensual polygamous relationship with other
adults. Living with other people, who also have rights, means that my right to
exercise my religion can never quite be absolute.
The courts have been very clear that this
same logic applies to the right to bear arms. Two fairly recent Supreme Court
decisions –DC v. Heller (2008) and McDonald v. Chicago (2010)—have established
that gun ownership is an individual right that is not connected to service in a
state or federal militia. These decisions are rightly seen as victories for gun
rights in the United States, and, unlike many of my friends on the left, I
believe that they were decided correctly.
But these rulings don’t come anywhere near
establishing an absolute right. Much to the contrary, Justice Scalia goes out
of his way in the Heller decision to say that gun ownership—like the freedoms
of religion, speech, assembly and the press—is NOT absolute and must be
balanced with other rights and legislative prerogatives with which it may
conflict. And the decision expressly permits the regulation of:
· Concealed weapons
· Possession of
guns by felons
· Possession of
guns by the mentally ill
· The carrying of
firearms into schools and government buildings
· Conditions on the
commercial sale of arms
· Dangerous and
unusual weapons
This isn’t quite a checklist, of course,
but it does give a pretty good view of what kinds of prohibitions the Court is
likely to accept. The two proposals most often advanced by gun-control
advocates—universal background checks and assault-weapon bans—clearly fall
within the criteria articulated in Heller: the former because it allows
officials to determine who is a felon or a person suffering from mental
illness, and the latter because it bans weapons widely regarded as “dangerous
and unusual.”
Let
me be very clear here about the difference between a Constitutionally acceptable
regulation and a good idea. Just because something is not unconstitutional does
not mean that it is a good thing to do. These are debates that we still need to have, and I suspect they will be passionate and controversial. But, unless somebody actually proposes an outright ban on guns, they will not be Constitutional debates, but political debates. And having difficult political debates is one of the things that it means to live in a representative democracy.
