Second Reading

Treating the Second Amendment as normal constitutional law.

Daniel D. Polsby from the March 1996 issue

(Page 2 of 2)

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.