More on Guns

I want to elaborate further on an idea that I raised in my previous post. The trouble that rights-minded people like me run into when we argue against certain rights is that we have to explain why we are absolute in the protection of certain rights, willing to compromise on some, and against the protection of others.

"A well regulated Militia, being necessary to the security of a free State...." Read in the expansive way I interpret rights, I must read the prefatory clause of the Second Amendment broadly. Accordingly, I read the world "security" broadly. Security means security against the tyranny of the federal government, and, after the 14th Amendment, against the tyranny of state governments. It also means local policing, as this was another function of the 18th century militia. It means defense of one's home and one's neighbor's home. As one of my law school professors explained, there is a pattern in the first four Bill of Rights. The First Amendment starts with religion—our innermost thoughts—and moves outward to personal speech, press, and assembly. The Second Amendment reflects a desire for protection of our persons. Moving outward again, the Third Amendment is a protection of our homes, and the Fourth is a protection of our effects.




Furthermore, the Second Amendment is in the nature of a categorical prohibition—"shall not be infringed" is closer to the First Amendment's "Congress shall make no law" than the Fourth's ban on "unreasonable" searches and seizures. There are very few cases in which prior restraints on speech are permitted. Why should prior restraints on gun ownership be any different?

Finally, it is hard to argue that we are long past the time when local police have fully taken up the mantle of community protection. There are many people alive who experienced first-hand local police forces as an instrument of oppression, rather than an instrument of protection. Luckily for our country, civil rights battles were won more with nonviolent than with violent means, but it was certainly the case during Jim Crow that the Declaration of Independence's prescription that "whenever any Form of Government becomes destructive" of people's basic rights, "it is the Right of the People to alter or to abolish it" could have been invoked.

So, why do I disagree with Heller, and, by extension, McDonald? Because the Constitution is a living organism.

First, note what Adam Winkler, a professor of constitutional law at UCLA identifies:

Forty-two states already guarantee individuals the right to have guns in their state constitutions. McDonald extends that right to the remaining eight outliers. None of those eight states, however, ever tried to completely ban gun ownership and qualified individuals can lawfully obtain guns in every one.

Gun ownership isn't going anywhere in this country. And very few places have instituted gun bans as strict as the ones in Washington, DC (invalidated in Heller) and Chicago (almost certain to be invalidated  on remand).

Next, nobody seriously argues that we should read the Second Amendment to its full scope. In Heller, Justice Scalia noted, as though uncontroversial:

Nothing 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

Even jurists in favor of a strong Second Amendment view it as a qualified right applicable in "reasonable" circumstances. Why should this be?

Again, because the Constitution is alive.

The Constitution, as Justice Souter identified in his fabulous speech, is a compromise between competing values. Even life, liberty, and the pursuit of happiness can clash in many cases. In all cases involving rights, we balance state interests against personal liberty. In cases involving "fundamental rights," the Court applies strict scrutiny: whether the law is "narrowly tailored" to serve a "compelling government interest." In many cases, state interests can be attenuated, speculative, hypothetical, or even post hoc justifications. The reason there are so many free speech absolutists out there is that it is awfully hard to come up with a non-contrived example of where the interests of the state are better served by clamping down on speech than by allowing free speech. "Parades of horribles" are rarely convincing arguments. And on the other side, restrictions on free speech strike directly at the heart of what it means to be a self-governing people.

With guns, however, the situation is more real and concrete. African-Americans are 13% of the population and the victims of 15% of nonfatal violent crimes, but (as of recent statistics) make up nearly half of murder victims. Three-quarters of these killings are by gun. Handgun fire is the leading cause of death of African-American males between the ages of fifteen and thirty-four. The harm of allowing free gun rights is not a speculative harm; it is a scourge that is decimating communities and families across the country. If ever there was a "compelling government interest," this is it.

Furthermore, as Justice Souter said in his speech, Plessy and Brown could both be right in their respective eras because in 1896 "separate but equal" was an improvement in the situation of African-Americans, while by 1954 it was clearly a tool of oppression and subordination. When the ambient facts of the world change, constitutional protections change with them. Today, in cities committed to gun control, local police forces—we hope—are an instrument of public protection, not of public oppression. Cities like Washington or Chicago have democratically determined that they want to put their communities in the hands of trusted police forces, not in the individualistic self-preservation that may work in other parts of the country.

So am I recommending reading the Second Amendment out the Constitution entirely? No, certainly not. But the Amendment must be interpreted through the lens of its underlying value: the ability of a free people to secure their life, liberty, and happiness. To emphasize the security against extra-communal forces to the exclusion of the security against intra-communal violence is a great constitutional irony—the cutting off of a free people's nose to spite its face.