Sunday, November 18, 2007

The Pesky Amendment

The never-ending debate about gun control in the U.S. has been moved along, or at least stirred up a little, by the publication of a book called Out of Range, by Mark V. Tushnet, which is the subject of a lengthy review and discussion by Cass Sunstein in the current New Republic. Tushnet takes on the vexing question of what the Second Amendment to the Constitution really means. Yeah, that one. The only one the ACLU isn’t too crazy about. The one about guns.

The controversy over guns will never die, because it’s about a lot more than the Second Amendment. Whether or not you think the government should restrict or even abolish individual ownership of firearms goes to the heart of what you think about society, government, and human nature in general. But in this country a large part of the debate centers on that troublesome Amendment, which states, in case you’ve forgotten: “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 question, of course, is whether this establishes an individual right to own guns or only a collective right for the states to field their own militias. Partisans of gun control point to the introductory phrase and say, “What could be clearer? They’re talking about state militias.” Gun rights proponents retort, “Whatever that phrase says, the main clause is crystal clear. What’s to argue about?”

Unfortunately, as Tushnet discusses at length, when you look at the legal history, not much about the Second Amendment is crystal clear. Gun rights supporters may be dismayed to learn that the Supreme Court has repeatedly appealed to the collective-right interpretation to uphold federal firearms laws like the 1934 National Firearms Act. (That’s why the sawed-off shotgun you have under your car seat is illegal.) However, the legal ground may be shifting, as the U.S. Court of Appeals for the District of Columbia Circuit ruled in March that D.C.’s gun ban was unconstitutional. The fight isn’t over.

Tushnet concludes that the amendment itself is too ambiguous for either side to claim victory on the basis of the text alone. His attempt at a plausible interpretation comes down to this: “We each have the right to keep and bear arms so that we can participate in the militia—the body of the people—and thereby keep governments from becoming tyrants.”

Which, I have a feeling, isn’t going to put an end to the debate. What does all this mean?

Maybe it just means that the world has changed since the Constitution was written, and that the Second Amendment isn’t a very good guide to firearms policy in the modern world. It wouldn’t be the first time that parts of the Constitution looked outdated. (I don’t recall a problem with quartering of troops any time recently.) I think Tushnet’s formulation is about right: the framers of the Constitution wanted citizens to have weapons, and the reason they wanted that was so that each state could raise a militia. That’s the way things were done back then, and the militias were seen as an important counterweight to federal power. The two parts of the Amendment are both there for a reason, but the burning political question that motivated it isn’t so burning any more. The Second Amendment is about the distribution of power, not the extent to which firearms should be regulated.

Now, before you gun prohibitionists pop the champagne corks, think about the fact that the Amendment takes for granted widespread private ownership of guns. The fundamental assumption is that most people are going to have guns around, certainly enough to raise a militia. If the Second Amendment has anything at all to say to us today, I don’t really see any way around that main clause. It assumes that people have guns and affirms that this is a desirable thing. I can’t see any interpretation that would support outright prohibition of private gun ownership.

However, that’s a far cry from saying that the government shall impose no regulations whatever on the private ownership of weapons. That leaves a whole lot of room for debate. And I don’t think the Second Amendment can take us very far in thinking through issues like licensing, registration or assault weapons bans.

Let’s start with first principles: I believe that self-defense is a fundamental right. Furthermore, I think that effective self-defense is a fundamental right. (Talk to the woman being stalked by an abusive ex-lover.) Unfortunately some people don’t agree, and they have made it illegal to own firearms in the city where I live and in numerous other places around the U.S. I think those laws are unjust and should be repealed. That woman should be able legally to own a gun for her protection.

But that doesn’t mean that no restrictions at all are admissible. I believe everyone has the right to drive a car as well, but I damn sure want to know that the person behind the wheel has undergone some kind of training and licensing procedure, because you can do a hell of a lot of damage with a car.

Rights come with responsibilities, and I’d like to see a comprehensive program of training and licensing of anyone who wants to own a firearm. Treat guns like cars, in other words; I’m not the first to say it. But that means recognizing an unequivocal right to own the things. There’s no significant movement to outlaw cars in this country. If there were, car owners would be reluctant to register their cars. There is a persistent and serious drive to outlaw firearms. Gun owners will not support licensing and registration schemes until they’re sure such schemes are not a prelude to confiscation.

Here’s a modest proposal: Let’s eliminate that pesky introductory phrase to the Second Amendment so that it reads unambiguously, “The right of the people to keep and bear Arms shall not be infringed.” Let’s repeal all the local laws that outlaw private ownership of firearms. And in exchange, let’s implement effective rules on training and licensing of gun owners and put in place registration regimes comparable to those for cars.

It’s going to require concessions from both sides.

Sam Reaves

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