Second Reading
 

Treating the Second Amendment as normal constitutional law

Commentary

by Daniel D. Polsby

It has not been long since the Second Amendment moldered in the torpid backwaters of constitutional law studies. Swollen with materials pertaining to the Equal Protection Clause and the First Amendment, the leading law school casebooks of the 1960s, '70s, and '80s had little or nothing to say about the right of the people to keep and bear arms. Indeed, most such books had not so much as an index entry on the subject. In the entire 20th century the Supreme Court has not decided a single case concerning the states' power to regulate firearms, and in the past generation's political debates about gun control legislation, the Second Amendment has played a marginal and, one must say, somewhat abject role. It has been waved talismanically by the (usually) losing side (consisting of firearms enthusiasts), who sense an "abridgment" of their "rights" in any firearms regulation, and scoffed at by the winning side (anti-gun advocacy groups and their allies in government), who argue that by its very terms, the Second Amendment guarantees only the rights of states to have well-regulated militias, and not the right of individuals to have firearms. There is, then, (say the winners) no constitutional reason for society to put up with high rates of suicide, accidents, and lethal criminal violence caused by the too-easy availability of guns, especially when those problems can be curtailed by making firearms harder and harder to come by, if not downright impossible for private citizens to obtain legally.

Hunters, target-shooters, and gun collectors have always been great devotees of the Second Amendment, and until quite recently by far the majority of writing on the subject was to be found in magazines dealing with outdoor recreation, hunting and fishing, or firearms hobbies. This writing often contains interesting anecdotes about people using guns to defend themselves from animals or criminals, and one sometimes finds references to or quotations from the thought of the illustrious men of the Founders' generation, especially Madison and Jefferson. Generally speaking, though, it must be said that even among enthusiasts who think about the Second Amendment quite a lot, there has been little appreciation for the intricate and nuanced way in which constitutional analysis is practiced, and has to be practiced, by judges and lawyers.

For the legal profession, constitutional text, history, precedent, and matters of expediency are all important, and no one provision of the Constitution is to be seized upon without due recognition of its context in the Constitution as a whole, and for the strands of doctrine that the Supreme Court has elaborated over the years to translate the words of the document into the actions of the government. The "freedom of speech and the press" that journalists habitually ascribe to the Founding Fathers is more aptly attributed to Supreme Court Justices Oliver Wendell Holmes Jr. and Louis D. Brandeis, whose opinions in a series of cases in the 1910s and '20s gave a modern form to the question of how "the freedom of speech" differs from "speech" simpliciter and what the limits of that freedom might be. Similarly, one might well say that the First Amendment's freedom of religion, such as it is, was for all practical purposes invented in the 1940s by Justices William O. Douglas, Robert Jackson, and Hugo Black and in the 1950s and '60s by Justice William Brennan.

This is a game in which the Second Amendment has never really played. It's true that there was little occasion for litigation prior to the late 1960s, because until then governments at every level did little to regulate firearms. Yet even in the years since the federal Gun Control Act of 1968, when gun restrictions of various kinds began to proliferate, courts and scholars were quite content to allow politics to take its course without reflecting on what the Constitution might have to say about the role of private firearms in American life. The fact that the Second Amendment found no champion among policy-making elites surely tells more about the social psychology of the class from which lawyers and social scientists are drawn than it does about the Constitution's text and structure. The modern American legal profession especially has been thoroughly acculturated to Max Weber's conception of the modern state as the monopolist of all legitimate force--a principle in undeniable tension with the private keeping of arms for self-defense.

But the Second Amendment's era of marginality may well be ending. In the law journals if not yet in media of mass circulation, the Second Amendment has captured the attention of scholars, including some of the most eminent and respectable in the field, who find, somewhat to their own surprise as they reflect upon the matter for the first time, that the private right to keep and bear arms is very much in character with the Bill of Rights as a whole and with the thinking of the Framers of the Constitution.

Despite its renaissance in the law reviews, however, it must be said that in practice the Second Amendment has not yet acquired full membership in the league of serious constitutional rights. Plaintiffs who go to court to overturn firearms restrictions usually prefer not to base their cases on Second Amendment arguments. An example is the litigation testing the validity of the 1993 Brady Law. The (eventually unsuccessful) challenge to this law was not based on the Second Amendment at all, but on the 10th Amendment claim that the federal government should not be allowed to oblige state officials to do (more or less costly) background checks on handgun buyers. The lawyers who bring these cases appreciate (as their fiery clients usually do not) that lower courts at least are unlikely to dispute the right of legislatures at any level of government strictly to regulate most varieties of firearms, up to and including prohibiting their sale and ownership altogether. Partly this response is simply routine deference to legislative prerogatives. Courts generally endeavor to uphold legislative decisions rather than undermine them. But in this instance judicial deference is more than routine, because, as Duke law professor William Van Alstyne has written, Supreme Court cases interpreting the Second Amendment are, for all practical purposes, missing in action. There simply is no modern jurisprudence that explains to judges the meaning of "the right to keep and bear arms" and the scope of their authority to decide that a given piece of legislation constitutes an infringement of that right. If ever there was a situation designed to play on the inherent timidity of lower-court judges, this is it.

A single example will suffice to show how decisive the virtual absence of interpretative precedents can be. In 1981 the trustees of a tiny bedroom suburb of Chicago enacted an ordinance forbidding the private possession of handguns within the village limits. The law was immediately challenged in federal district court on a Second Amendment theory (among other grounds). In due course the U.S. Court of Appeals for the Seventh Circuit received the case, known as Quillici v. Village of Morton Grove, and upheld the law, finding that there was no authentic Second Amendment issue raised by the case. It cited as authority the most recent Supreme Court pronouncement on the subject, Presser v. Illinois, decided in 1886, many years before the "incorporation" doctrine was conceived. In the 19th century it was conventionally said that the Bill of Rights constrained only national and not state government. A few years before Presser, for example, the Supreme Court clearly held (in United States v. Cruikshank) that neither the Second Amendment nor the First creates any individual rights that a state government need respect. The Court, of course, has long since repudiated this principle; beginning in the 1930s, it applied ("incorporated") one provision of the Bill of Rights after another to limit the authority of the states. But it has never done so with respect to the Second Amendment, leaving an opening for Quillici-type decisions.

Second Amendment enthusiasts are understandably eager to see this anomaly corrected. Nevertheless, there is reason not to jump at every perceived legislative affront with a new lawsuit. The procedural posture of a case--especially a novel case--can matter enormously to its outcome. To maximize one's chance of winning, it is important to align one's case with legislation rather than against it. Congress has power under Section 5 of the 14th Amendment to define and protect substantive due process rights from state encroachment. Suppose Congress enacted that the right to bear arms is an individual right that (along with the rest of the Bill of Rights) is "incorporated," so as to be fully applicable against the states, and suppose the gun control law of some state--say, New York--infringed upon that right. In the resulting litigation, the always-tilted playing field would for a change favor the Second Amendment. Instead of remaining in the Supreme Court's dead-letter office, the Second Amendment would move to the status of normal constitutional law.

Normal constitutional argument begins with text. The first question to consider, then, is: What does the Constitution say about the right to keep and bear arms? There seem to be two main theories of what sense is conveyed by the language of the Second Amendment. The theory that is most often encountered by the intelligent lay public reads the words to say something like: "In order to make themselves secure, states have a right to have a well regulated militia, and Congress may not restrict state regulation of militia members' weapons." This is approximately the interpretation favored by most major newspapers' editorial writers, by gun control groups, and by a broad swath of conventional public opinion, running the partisan gamut from left (e.g., Rep. Charles Schumer of New York) to right (e.g., President Nixon) and most political shades in between.

But in places where close attention is paid to what words actually say, the states'-rights reading of the Second Amendment has attracted surprisingly little support. After all, the Second Amendment does not say, "A well regulated militia, being necessary to the security of a free state, shall not be infringed." Nor do the words of the amendment assert that "the right of the people to keep and bear arms" is conditional upon membership in some sort of organized soldiery like the National Guard. Indeed, if there is conditional language in the Second Amendment at all, evidently the contingency runs the other way: "Because the people have a right to keep and bear arms, states will be assured of the well regulated militias that are necessary for their security." Some version of this reading is supported by almost all of the constitutional historians and lawyers who have published research on the subject. Indeed, this view is so dominant in the academy that Garry Wills, the lone dissenter among historians on the proper reading of "the right of the people to keep and bear arms," has dubbed it the Standard Model of the Second Amendment.

Are these textual arguments dispositive? In some (increasingly rare) instances, lawyers are prepared simply to read what the Constitution says and end the conversation at that point. For example, if some question arose about the eligibility of a person who had not "attained to the age of thirty-five years" to serve as president, most lawyers would probably be content simply to follow the command of Article II, Section 1 rather than attempt to penetrate to the deeper meaning the clause must surely have.

But a number of scholars, including some friendly to a broad reading of the Second Amendment like Van Alstyne and University of Texas law professor Sanford Levinson, agree that the Second Amendment is so obscurely drafted as almost to invite confusion and misunderstanding. Where text is inadequate standing alone, one needs historical tools to explain what the provision's language actually meant. And even lawyers who, like me, do not find the draftsmanship all that confusing recognize that arguments, especially arguments about "the right of the people to keep and bear arms" that have become politically incorrect as the 20th century draws to a close, will acquire extra cogency by pointing out that the Founding Fathers of our country are at one's side. Whether or not the meaning of the text seems clear, it is always helpful to adduce evidence of how the drafters of the Bill of Rights would have understood a particular provision's language.

Unhappily, in many cases, including some of the most vexing, such evidence is unavailable. We can only extrapolate and conjecture about how the Founders would have understood the First Amendment's "freedom of the press" to apply to the Playboy Channel, or how the "search and seizure" language of the Fourth Amendment would have been thought to bear on overheard cellular telephone calls. But no ambiguity at all surrounds the attitude of the constitutional generation concerning "the right of the people to keep and bear arms." To put the matter bluntly, the Founders of the United States were what we would nowadays call gun nuts. "One loves to possess arms," Thomas Jefferson wrote to President Washington (whose own gun collection, Don Kates notes, contained more than 50 specimens). And to his teenage nephew, the author of the Declaration of Independence had this to say: "A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives a moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks."

Addressing Virginia's constitutional ratification convention with characteristic exorbitance, Anti-Federalist icon Patrick Henry declared that "the great object is that every man be armed....Everyone who is able may have a gun." And James Madison, author of the Bill of Rights, recognized "the advantage of being armed, which the Americans possess over the people of almost every other nation," whose tyrannical governments are "afraid to trust the people with arms."

There are at least scores of contemporaneous expressions of similar import. But if one is trying to fathom whether or not the Second Amendment recognizes an individual right, perhaps the most significant fragment of history is this: The idea that the Second Amendment guarantees a collective but not an individual right originated in the 20th century with gun control groups and politicians. The theory was simply unknown at the time of the Constitution's drafting and for more than a century thereafter. (There were anti-gun ideologues in 18th-century America, but these were the Quakers, who rejected the use of arms by anyone, individuals and communities alike.) The "collective rights" theory seems to have flowered in the 1960s or '70s as a prop in national political debates about gun control laws. The most famous and widely cited argument for this position appeared in Parade magazine in 1990, ostensibly authored by former Chief Justice Warren E. Burger, a judge not famous then or now as a constitutional authority and whose 30-year judicial career had in any case included not a single Second Amendment decision.

Akhil Amar of Yale Law School has famously argued that the Bill of Rights can and should be read as a coherent document, rather than as a grab bag of snippets and special pleadings. Taken as a whole, Amar argues, the Bill of Rights is a sort of constitution that embodies a consistent theory, not only about the moral personality of human beings but also about the state and especially its lawless tendencies under the stress and strain of political conflict. In connection with the Second Amendment, this approach has special attractions, because the basic interpretative questions concerning the Second Amendment--what is the "right" and when is it "abridged"?--do not have any specifically "Second Amendment" answers. But if the Bill of Rights is taken as a congruous and interconnected whole, it might be possible to begin the analysis by piggybacking on the fairly deep jurisprudence of constitutional rights that has developed in connection with other amendments.

To begin with, as Amar and others have pointed out, keeping and bearing arms is not the only "right of the people" mentioned in the Bill of Rights. The First Amendment forbids Congress to abridge the "right of the people" peaceably to assemble; the Fourth Amendment forbids violation of the "right of the people" to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. The right to keep and bear arms, then, should probably be understood as cognate in some way to those rights--surely in the sense that it is possessed by individuals as those other rights are, and also in the sense that, like those other rights, the right to keep and bear arms is in some way fundamental to the preservation of republican citizenship.

It is beyond all rational doubt that this understanding reflects the view of the Founders. They took from Locke the principle that people have a right to defend themselves, with arms if necessary, and from both Hobbes and Locke--to say nothing of their own experience with the Crown --the principle that central governments have a tendency, which requires systematic mitigation, to become overmighty with those subject to their power. The purpose of an armed population was to guarantee that the central government could not possess a monopoly of violence (no wonder modern-day liberals find the Second Amendment so hateful) and to assure that citizens would have the wherewithal to defend themselves and their communities against tyrants and wrongdoers.

It remains to be answered when it might be said that this right has been abridged. One of the by-products of the political polarization concerning the Second Amendment is that all sides seemingly agree that this is a question that need never be seriously addressed. True-believing gunnies think any form of taxation or regulation of firearms should be regarded as an "abridgement," no interpretation necessary. True-believing gun controllers, by embracing the "collective rights" theory of the Second Amendment, hardly need to reach the question of "abridgement," because their interpretation denies the legal standing of any individual or organization--anyone who is not a "state"--to raise the question. What is needed is some principled way to locate a sane middle ground that gives routine scope to state police powers yet respects and defers to the constitutional norm involved in keeping and bearing arms.

There are several ways one could get a handle on this problem. First, the language of the Second Amendment itself invites one to differentiate between arms that can be kept and borne (i.e., carried) and other arms. This is not the sort of difference that could support a regulatory or legislative distinction, like the "assault weapons" provisions in the 1994 Omnibus Crime Act, between functionally equivalent firearms based on such cosmetic attributes as possession of a pistol grip, flash suppressor, or bayonet lug. But it would make sense of a distinction between rifles, shotguns, and pistols on the one hand and hydrogen bombs on the other. So as a first cut at the problem, one might say that infringement in the constitutional sense does not occur when a statute or regulation imposes burdens on possession of weapons other than those that militiamen might be expected to bring ("bear") into the field with them when summoned from their homes.

It might also make sense to allow legislatures to recognize that in certain circumstances firearms constitute a special danger. One thinks in particular of saloons: Perhaps guns and alcohol do not mix, just as (according to the laws of many states and communities) naked dancers and alcohol don't mix. This sort of limitation on the bearing of arms does not readily emerge from constitutional history or text. It would be defended simply on prudential grounds, the thought being that it is implausible that the right to keep and bear arms would be the only constitutional right not subject to some kind of rule of reason. Though philosophical firearms enthusiasts--like journalists, pornographers, and other single-issue partisans --tend to understand the term right quite absolutely, anyone interested in preserving a system of political and civil rights that impinge and abut on one another will have to take a more refined view of the matter.

We allow the state to regulate the time, place, and manner of speech, or acts (like burning one's draft card) that are heavily laden with speech-like (that is, communicative) content--but we allow this regulation only subject to an all-important qualification. It must not discriminate on the basis of a communication's content, and it must be no more expansive than necessary to accomplish its purpose. Regulating the speech of Democrats more restrictively than that of Republicans, or allowing anti-abortion posters in a certain public place while forbidding abortion-rights posters, would not be regulation that was neutral in its attitude toward a constitutionally protected value. It would be censorship--a pretextual act inherently hostile toward that value. Even formally neutral regulation could disclose such hostility if it exceeded what was necessary to accomplish a proper purpose. For example, if a municipality banned all public speech whatsoever to preserve public peace and quiet (in itself a perfectly licit end), courts would say this action, though formally "neutral," was too broad to be sustained.

The Second Amendment should be seen as analogous. There would be no "abridgement" if regulation were aimed at the time, place, and manner in which firearms are used. The community has a legitimate interest in seeing to it that arms are not kept or borne negligently. It might well be permissible to pursue this interest by insisting that those who keep and bear arms receive adequate education, on the firing range and in the classroom, to assure the responsible exercise of this right. Such a law would not be invalid unless it appeared that it was being utilized pretextually--like the extravagant "literacy tests" that Jim Crow voting registrars in the South used to impose on black voters--to subvert or disparage that constitutional right. Any government burden on "the right of the people to keep and bear arms" must have an important purpose and must be justified in spite of, and not because of, its tendency to discourage the keeping and bearing of arms.

Firearms regulations should be subject to the heightened scrutiny that courts reserve for impositions on other fundamental rights, which means that serious and skeptical consideration will be given to the claim that regulation is necessary, that the means chosen correspond to that claim of need, that the state interest is a very important one, and that the regulations are no more extensive than they have to be to address that interest. As with any civil right, the burden of persuasion should remain with the proponent of legislation that restricts or burdens the right to keep and bear arms, rather than, as with ordinary legislation, on the opponent. But a public policy of simply discouraging people from owning or using firearms is not, in and of itself, a constitutionally permissible objective, any more than discouraging people from religious observance would be permissible to some future, oh-so-progressive government that considered religion as hopelessly declassé as progressives nowadays consider the right to keep and bear arms. Thus the Los Angeles Police Department has behaved unconstitutionally by refusing, over a period of many years, to exercise its statutory discretion to issue carry permits, because the department didn't think it a good idea for people (other than police officers) to carry guns around. And any statute or regulation that burdens the right to keep and bear arms on the ground that guns are a public health hazard should enjoy the same frosty reception in court that would be given to a statute or regulation that burdened the free exercise of religion as a mental health hazard.

The constitutional norms involved in the Second Amendment, unlike those elsewhere in the Bill of Rights, are undeniably controversial. No one scorns the freedom of religion or the freedom of the press; but the propositions that government should not have a monopoly of the means of violence and that "the people" should be entitled (if not obliged) to defend with arms their persons and communities--these are much against the grain of (and, as Sanford Levinson wrote, very much an embarrassment to) the cosseted intelligentsia of 1990s America. It is especially easy to empathize with the policy intuitions of this elite if one is a member of it. But our instincts about firearms are wrong. We upper-middle-class opinion leaders misunderstand the world; we abide in safety behind a ring of steel. Police officers and security guards keep and bear our arms for us, so that we do not remember how constantly we need them. The values and assumptions that gave rise to the Second Amendment come from a world different from the one we inhabit, a world full of irrational hatreds, mortal dangers, and armed enemies. It represents a serious failure of imagination not to recognize how temporary remissions from this dangerous world have been, and not to learn from the Bill of Rights what its drafters had to teach.

Daniel D. Polsby (ddpolsby@nwu.edu) is Kirkland & Ellis Professor of Law at Northwestern University.

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