Wednesday, March 19, 2008

Second Amendment decision could have perverse results

The U.S. Supreme Court has heard the arguments (PDF) in the case of D.C. v. Heller, it looks like a majority of the justices are leaning towards an individual-rights interpretation of the constitutional provision that would put the court in accord with most modern legal scholars, and everybody is awaiting the final decision.

But just what result are they hoping for?

The answer appears obvious: Advocates of the right to self-defense want the Second Amendment read as protecting an individual right, while opponents of civilian ownership of firearms want the amendment read as securing the states' right to organize militias, with no provision for individual gun ownership. Right?

Well, maybe. Perhaps the right question is what result should people be hoping for?

Gun-rights supporters certainly should be hoping for an explicit statement that the right to bear arms is protected as an individual right subject to protections equivalent to those provided for free speech. But they're not likely to get such a strong ruling. More likely, they'll get an affirmation of an individual right, but one subject to regulations of various severity supposedly linked to the government's interest in keeping the peace and enforcing laws, but really motivated by a desire to avoid too terribly offending the political powers-that-be.

This result, the likely one, is what gun control advocates should be hoping for -- not an absolute rejection of an individual right to bear arms.


Because if the Supreme Court rules that the Second Amendment is essentially a nullity from an individual rights perspective, the decision is likely to turn out to be the most effective marketing boost firearms manufacturers and gun rights organizations have ever seen. Panicked by the ruling, millions of Americans -- current gun owners as well as those who have put off firearms purchases -- will very likely flock to buy guns, ammunition and reloading supplies to make more ammunition in the future, just as they did in the wake of the Brady Bill and the now-expired "assault weapons" ban. In 1994, during the days leading up to President Clinton's signing the controversial bill restricting many popular rifles, the New York Times reported:

Although current sales have not approached the buying booms set off by passage of the Brady law on handguns last year or the House's first vote to ban assault weapons in May, handguns and assault-type weapons are selling briskly, gun dealers around the country said.

"Every time they mention the crime bill on the news, people come in," said Cesare Venegoni, assistant manager at Jim's Military Collectibles in Plano, Tex. "A lot of people are afraid they might not be able to have a gun. That fear has prompted them to buy one."

That will probably happen even in the absence of federal legislation to tighten restrictions on firearms ownership, and despite explicit state-level protections for the individual right to keep and bear arms.

Far from surrendering to a ruling stripping them of protection for their right to own the means of self-defense, Americans who prize that most politically charged of rights will dig in their heels and do their best to make the draconian laws they fear unenforceable. They'll become more adversarial toward gun control advocates and the government, and increasingly defiant toward any move they consider a step in the direction of disarmament.

The Geneva-based Small Arms Survey estimates (PDF) that American civilians currently own 270 million firearms. That's already a number far beyond the ability of any government to curtail in a significant way. Any further surge in firearms purchases will just make a mockery of whatever legislation gun-controllers might favor, while undermining support for the government by many Americans.

If, on the other hand, the Supreme Court takes the middle road by recognizing protections for an individual right, but allowing for substantial exceptions and conditions for that right, gun control advocates will get the largest measure possible of what they want. Confiscation will be off the table, most outright bans will become impossible, so gun owners will be less fearful of efforts to impose strictures on firearms use and ownership that just nibble around the edges. Gun controllers will probably still have the option of pushing for registration, permits and restrictions on concealed carry -- and they'll have a greater chance of success since the opposition will be less unified and resistant.

What? That's not enough?

Well, if you're a gun control advocate, that's the best you can hope for. Even in the current climate of a presumed individual right, California's 1989 law requiring registration of many rifles resulted in about 7,000 affected weapons of an estimated 300,000 in private hands in the state being reported to authorities. It's hard to believe that compliance could be lower, but it will be if the Supreme Court strips away protections for the right to bear arms, making advocates of civilian armament feel besieged.

Like it or not, significant changes in the way Americans own and use guns are simply out of the question. The question now is whether we get strong protections for an individual right, weak protections, or an attack on the concept of an individual right that perversely leaves Americans better armed and more divided than ever.



Anonymous Anonymous said...

The notion that the 2nd Amendment to the Constitution of the United States of America entitles all citizens to keep and own guns in our current age is ridiculous. I do not suggest that it should either be legal or illegal to own a gun in this opinion; my assertion here is that the Constitution itself (or at least the 2nd amendment to it) does not confer a "right" to own a gun on citizens in the 21st century United States of America.

The second amendment reads:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The copies of the Bill of Rights sent to the states for ratification raises more questions about the original due to capitalization and grammar changes:

"A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."

This statement does, unfortunately, leave a great deal of room for argument. So what is the object of this all-important shall not be infringed command? Did it mean that the well-regulated militia shall not be infringed? We can agree that the clause "being necessary to the security of a free State" refers to the militia. The real question the debate seems to focus on is that other clause in there: "the right of the people to keep and bear arms". The version that was ratified by the states seems to make the case against a constitutional right to bear arms outside of the militia context more definite- it specifically associates the first clause as explaining the need for a well-regulated militia (necessary to the security of a free state) and then appears to relate the whole of the rest of the sentence as a support for that need, not as a separate right to be granted.

In the context of the time in which it was written and also in the times in which we live today, however, I think common sense makes this issue clear. Certainly the chief goal of this amendment was to ensure that militias could be raised for the purpose of securing the states. The main reason for the use of militias for that role was because the federal army was nothing but a collection of state militias. The states were reasonably concerned about federal powers and the opportunity for tyranny over the states considering what the colonies had just suffered under mother England. At the time it was also thought impossible for a federal army to be powerful enough to defend the country.

One of the reasons for that was simple math under the terms of warfare in the 18th (and much of the 19th) century. An army was cannons, horses, men, and guns. Troop and gun numbers were everything, and therefore the only way to maintain military strength was to ensure that militias could be quickly raised. It was also common practice at the time for citizen-soldiers who could be called into action to buy, maintain, and bring their own weapons.

Although many constitutional statements have proved timeless, guns and warfare are both primarily dependent on technology and such technology (and consequently warfare) has changed drastically. We live in a world where one weapon of mass destruction can easily mean the destruction of an army larger than any ever imagined at that time, and today the United States happens to be the single greatest wielder of such weapons in the world. We no longer live in a country that uses "well-regulated militias" on terms even comparable to what was contemporary to the Constitution. I will agree that we can loosely apply the "well-regulated militia" to our current state National Guard units, that they should definitely be well regulated, and that they should not be infringed upon in their right to bear arms.

If we had a system by which such units relied upon the readiness of state populations, bearing their own arms, to be called upon as part of those militias, I could agree with this meaning that such populations should therefore be permitted under this amendment to own guns. This, however, is not the case, and there is no practical reason for a citizen to own guns for the purpose of being prepared to be called upon by their home state's National Guard unit. It is also absurd to take the position that in some unthinkable emergency or scenario where the federal government invaded one of the states illegally that citizens with their own private gun collections would make any difference at all. It's a moot point.

The technology of modern military might, in the argument that the practice of "bearing arms" at home is for the purpose of national or state defense, nullifies it. If one makes that claim, then one would have to adjust the entitlement of rights under this amendment, by extension, to intend that private citizens should not be infringed upon in their right to keep and bear nuclear warheads or tomahawk cruise missiles.

There may be reasons why it should be legal to own certain types of weapons, and certainly the states must regulate those weapons, but the Constitution and the 2nd Amendment of the Bill of Rights absolutely do not give citizens the right to bear arms for the purposes of hunting, self-defense, sport, hobbies, or any other reason except for well regulated militias, which are no longer relevant to our time. The Constitution does not disallow these other gun ownership and use rights, but neither does it confer them. It would seem that there is something about owning a gun that makes the owner completely irrational about not being able to own it. That irrationality leads to powerful lobbying, and that lobbying is what drives this argument, not patriotism or Constitutional reverence.

March 19, 2008 10:52 PM  
Blogger J.D. Tuccille said...

While I'm sure that you're sincere in your opinion that "[t]he notion that the 2nd Amendment to the Constitution of the United States of America entitles all citizens to keep and own guns in our current age is ridiculous," that puts you at odds with the vast majority of constitutional scholars who have studies the question.

First of all, the Bill of Rights confers no rights at all, it merely establishes legal protections for preexisting natural rights inherent to humans -- that was the theory of the founders.

Beyond, that, I urge you to review the literature. You may want to start with this law review article by Prof. Glenn Harlan Reynolds: "A Critical Guide to the Second Amendment."

I also recommend: "Under Fire: The New Consensus on the Second Amendment."

March 20, 2008 6:42 AM  
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March 19, 2009 12:11 AM  

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