Second Thoughts on the Second Amendment

Debates about gun ownership and gun control are driven more by values and ideology than by pragmatism--and hardly at all by the existing empirical research, which is complex and inconclusive. Wright, Rossi, and Daly reported that there is not even any "suggestive evidence" showing that "gun ownership . . . as a whole is, per se, an important cause of criminal violence." The evidence that guns deter criminal violence is equally insubstantial, they added, as is evidence that additional gun controls would reduce crime. Many are already in place and rarely, if ever, enforced; or they make no sense. In 1983 Wright, Rossi, and Daly concluded that the "benefits of stricter gun controls . . . are at best uncertain, and at worst close to nil."

As for legal debates about the existence of constitutional rights, empirical data is irrelevant, or at best peripheral. But the paucity of proof that gun controls lessen crime is particularly galling to people who believe that they have a fundamental right to bear arms. In theory, at least, we restrict constitutional rights only when the costs of exercising them seem unbearably high. In fact we argue continually about what those costs are: Does violence in the media cause violence in real life? Did the release of the Pentagon Papers endanger the national security? Does hate speech constitute discrimination? In the debate about firearms, however, we can't even agree on the principles that should govern restrictions on guns, because we can't agree about the right to own them.

How could we, given the importance of the competing values at stake--public safety and the right of self-defense--and the opacity of the constitutional text? The awkwardly drafted Second Amendment doesn't quite make itself clear: "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." Is the reference to a militia a limitation on the right to bear arms or merely an explanation of an armed citizenry's role in a government by consent? There is little dispute that one purpose of the Second Amendment was to ensure that the people would be able to resist a central government should it ever devolve into despotism. But there is little agreement about what that capacity for resistance was meant to entail--armed citizens acting under the auspices of state militias or armed citizens able to organize and act on their own. And there is virtually no consensus about the constitutional right to own a gun in the interests of individual self-defense against crime, rather than communal defense against tyranny. Is defense of the state, and of the common good, the raison d'être of the Second Amendment or merely one use of it?

THE Supreme Court has never answered these fundamental questions about the constitutional uses of guns. It has paid scant attention to the Second Amendment, providing little guidance in the gun-control debate. Two frequently cited late-nineteenth-century cases relating to the Second Amendment were more about federalism than about the right to bear arms. Presser v. Illinois , decided in 1886, involved a challenge to a state law prohibiting private citizens from organizing their own military units and parades. The Court held that the Second Amendment was a limitation on federal, not state, power, reflecting the prevailing view (now discredited) that the Bill of Rights in general applied only to the federal government, not to the states. (A hundred years ago the Court did not apply the First Amendment to the states either.) Presser followed U.S. v. Cruikshank, which held that the federal government could not protect people from private infringement of their rights to assemble and bear arms. Cruikshank, decided in 1876, invalidated the federal convictions of participants in the lynching of two black men. This ruling, essentially concerned with limiting federal police power, is virtually irrelevant to Second Amendment debates today, although it has been cited to support the proposition that an oppressed minority has a compelling need (or a natural right) to bear arms in self-defense.

The most significant Supreme Court decision on the Second Amendment was U.S v. Miller (1939), a less-than-definitive holding now cited approvingly by both sides in the gun-control debate. Miller involved a prosecution under the 1934 National Firearms Act. Jack Miller and his accomplice had been convicted of transporting an unregistered shotgun of less than regulation length across state lines. In striking down their Second Amendment claim and upholding their conviction, the Court noted that no evidence had been presented that a shotgun was in fact a militia weapon, providing no factual basis for a Second Amendment claim. This ruling implies that the Second Amendment could protect the right to bear arms suitable for a militia.

Advocates of gun control or prohibition like the Miller case because it makes the right to bear arms dependent on at least the possibility of service in a militia. They cite the Court's declaration that the Second Amendment was obviously intended to "assure the continuation and render possible the effectiveness" of state militias; they place less emphasis on the Court's apparent willingness to permit private citizens to possess military weapons. Citing Miller, a dealer at a gun show told me that the Second Amendment protects the ownership of only such devices as machine guns, Stingers, and grenade throwers. But advocates of gun ownership don't generally emphasize this awkward implication of U.S. v. Miller any more than their opponents do: it could lead to prohibitions on handguns. They like the Miller decision because it delves into the history of the Second Amendment and stresses that for the framers, the militia "comprised all males physically capable of acting in concert for the common defense."

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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