In last Thursday’s edition of the News, I tried to articulate a meaningful difference between Supreme Court jurisprudence and the human costs of gun violence. In response to criticism, I feel compelled to offer a more formal justification for my understanding of the Second Amendment.
The Second Amendment protects “the right of the people to keep and bear Arms.” Contrast this language with that of the Fifth Amendment (“no person shall”) and the 6th Amendment (“the accused shall”). The Bill of Rights makes a meaningful distinction between the rights of “the people” and of “persons.” This distinction is especially clear in the 4th Amendment, which states that the collective “people” have a right “to be secure” in their individual “persons.” The Second Amendment contains only the collective language: “the right of the people.” Despite any protestation to the contrary, the text of our Constitution does draw a significant distinction between collective and individual rights.
When the 2nd Amendment was ratified, the “Militia” did of course consist of virtually all adult (white) males — as Yale Law School professor Akhil Amar ’80 LAW ’84 points out, we should understand the “the Militia” and “the People” as roughly equivalent. But using such an understanding to justify unlimited gun rights grossly oversimplifies the 2nd Amendment language referring to a “well-regulated Milita.” It’s difficult to argue that a populace with unlimited access to guns constitutes a “well-regulated Militia” for the simple reason that such a populace is not “regulated” at all where weapons are concerned. The inclusion of the words “well-regulated” in the 2nd Amendment should leave us with two questions: Regulated by whom? And what sorts of regulations are permissible?
The Bill of Rights was an anti-Federalist measure designed to place explicit limits on the Federal government, generally in favor of state governments. Indeed, the 1st Amendment (at the time of its ratification) did not invalidate state-established churches or state sedition laws — it refused federal Congress the ability to establish an official religion and restrict freedom of speech. Considering that at the time of the Founding functional militias were often organized by states — and considering that the Bill of Rights as a whole was originally intended to protect the states from federal excess — it is reasonable to say that “well-regulated Militia” can be understood as one organized by and subject to the regulations of a state or local government. It’s much more difficult to claim that a mass of citizens armed with whatever weapons they desire constitutes in any way a “well-regulated Militia.”
The Constitution does not permit “regulation” that would effectively ban weapons — such laws would violate the right to “keep and bear Arms.” But should we believe that state and local governments can therefore pass no laws regulating the kinds of weapons that their people are permitted to own and carry? Such a holding would threaten anti-terrorist statutes prohibiting the ownership of bomb-making materials. Doesn’t it stand to reason that local governments can pass laws restricting ownership of certain categories of dangerous weapons? Shouldn’t elected officials be permitted to make legislative findings that unlimited handgun ownership poses a risk to public safety and legislate accordingly? The Supreme Court has historically shown broad deference to the “police powers” of local governments to protect the health or safety of their citizens. The law at issue in D.C. v. Heller does exactly that. Some people may contest the findings underpinning the law, or they may believe that it’s simply bad policy, but our democratic system provides recourse for those folks: elect new leaders.
The Second Amendment has never been subject to the Fourteenth Amendment doctrine of incorporation — a long-term judicial effort to protect certain enumerated rights from both state and federal infringement. Perhaps the right to keep and bear arms is conspicuously absent from the incorporation doctrine because the Second Amendment does in fact explicitly permit local regulation of the “Militia.” Much as the First Amendment right to assemble is constrained when it threatens public safety (I have no constitutional right to stage an anti-gun protest in the middle of I-95, for example), so too the Second Amendment right to keep and bear arms is constrained by the right and duty of local governments to protect their citizens. This is hardly a radical view. It’s a notion that comes straight from the language and history of the Second Amendment and previous Bill of Rights jurisprudence.
I recognize that I haven’t responded to the counterargument that more guns actually promote safety. While my understanding of the available evidence leads me to disagree with this assessment, I will say only that the debate about the purpose and role of weapons in contemporary America is best left to our elected bodies rather than our unelected courts. The interpretation of the Second Amendment outlined above allows the weapons controversy to be decided by our publicly accountable legislatures — an advantage that prevents the specter of “activist jurisprudence” from hanging over this country’s understanding of gun rights.
Xan White is a junior in Pierson College. His column usually runs on alternate Thursdays.