Your Rights, My Rights, Everybody’s Rights: Thoughts on the Second Amendment

“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.