Arms and the Right | The Nation


Arms and the Right

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While one can quarrel about the details, it would thus appear that the NRA has been correct all along concerning the Second Amendment's original intent to guarantee an individual right to bear arms. But Tushnet adds that there is also the question of how the amendment has come to be understood in the years since. Once the Constitution was ratified and the new Republic began taking its first wobbly steps, three things happened: militias fell by the wayside as Americans discovered they had better ways to spend their time than drilling on the village green; politicians and the police took fright when guns began showing up in the hands of people they didn't like, such as newly freed blacks or left-wing radicals; and public safety became more and more of a concern as urbanization rose.

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Daniel Lazare
Daniel Lazare is the author of, most recently, The Velvet Coup: The Constitution, the Supreme Court, and the Decline of...

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Laurence Tribe's new book asks us to consider the "invisible" web of ideas that have grown around the text of the Constitution. But who's to say what it contains?

Thus, Supreme Court Justice Joseph Story complained in 1833 about "a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations." In 1879 the Illinois state legislature outlawed private militias after 400 or so German socialists paraded through Chicago with swords and guns, while the Supreme Court's 1939 decision United States v. Miller upheld a ban on sawed-off shotguns on the grounds that such weapons had nothing to do with maintaining a well-regulated militia. However scattershot, various gun-control measures have proliferated since the 1930s, prohibiting certain types of firearms (Tommy guns), forbidding certain people from owning them (felons and fugitives), establishing "gun-free school zones" and so on, all based on a collective-right reading holding that government has free rein to do what it wishes to maintain public safety. By the time Tribe published his famous textbook, American Constitutional Law, in 1978, any concept of an individual right to bear arms had effectively disappeared. The Second Amendment, American Constitutional Law announced, was irrelevant when it came to "purely private conduct" in the form of gun ownership. Gun control could therefore go forward unimpeded.

In retrospect, Tribe's textbook was plainly the high-water mark for the "collective right" interpretation. Eleven years later, Levinson published his Yale Law Journal article, complaining that "for too long, most members of the legal academy have treated the Second Amendment as the equivalent of an embarrassing relative, whose mention brings a quick change of subject to other, more respectable, family members." In fact, intellectual honesty dictated that they recognize there was more to the amendment than they had been willing to admit.

While Tribe has since come around to the individual-rights point of view (the 2000 edition of American Constitutional Law contains a ten-page reconsideration of the subject), he is now among those arguing that, notwithstanding such a right, firearms are still "subject to reasonable regulation in the interest of public safety" and that "laws that ban certain types of weapons, that require safety devices on others and that otherwise impose strict controls on guns can pass Constitutional scrutiny." Tushnet agrees, noting that the Pennsylvania State Constitutional Convention declared in 1788 that "no law shall be passed for disarming the people...unless for crimes committed, or real danger of public injury from individuals," a clear indication that public safety was a concern even in the Republic's earliest days. He observes that, in what has been called "America's first gun control movement," state legislatures followed up in the 1810s with laws against concealed weapons, bowie knives and the like for the same reason. Today, there is no shortage of gun-control laws even in states that recognize a constitutional right to bear arms, yet the courts have not seen a conflict. "Indeed," says Tushnet, "it's hard to identify a gun-control policy that has not been upheld against challenges based on state constitutional guarantees of an individual right to keep and bear arms."

In other words, we can all relax. Given its current conservative lineup, the Supreme Court will almost certainly uphold an individual right to bear arms in District of Columbia v. Heller. But while gun prohibition or equally sweeping licensing laws will probably not be permissible, lesser forms of gun control are still acceptable. Thus, things will continue pretty much unchanged. Lawyers will go back to arguing whether banning assault weapons passes constitutional muster, while the NRA will go back to complaining that we are all on a slippery slope to tyranny. Moms will march for gun control, hunters will campaign against it and "cold dead hands" bumper stickers will continue to proliferate on pickups. Plus ça change, plus c'est la même Scheiss.

Or so Tushnet suggests, although some of us may not be so sanguine. The problem may be an excessively narrow reading of the Second Amendment and the broader Constitution of which it is a part. Law professors, not surprisingly, tend to think of the Constitution as the law. But it is also a plan of government and a blueprint shaping American thought on such topics as democracy, civil liberties and popular sovereignty. Hence, while an individualist reading of the Second Amendment will certainly affect gun control in some fashion, that is not all it will affect. It will also send a powerfully coded message about the proper relationship between the people and their government and the nature of political authority. It is this aspect of the Second Amendment as opposed to its strictly legal dimension that seems most important.

Indeed, the closer one looks at the Second Amendment, the more significant its political ramifications seem. Its structure, for example, is oddly parallel to that of the larger Constitution, with a preamble (lines one and two) advancing a rationale of sorts and then a body, or gist (lines three and four), stating what is to be done. Other than the famous one beginning with "We the people," this is arguably the only such preamble in the entire document and certainly the only one in the Bill of Rights. The logical parallels are also curious. The larger Constitution opens by declaring that the people have unlimited power to alter their political circumstances so as to "promote the general welfare and secure the blessings of liberty to ourselves and our posterity." It seems that "we the people" can do whatever we want to improve our situation, including tossing out one constitution (the Articles of Confederation) and ordaining a new one. But the body of the Constitution goes on to say something completely different by declaring in Article V that a supposedly sovereign people is decidedly unsovereign when it comes to modifying the plan of government made in its name. (With just thirteen states representing as little as 5 percent of the US population able to veto any amendment, the US Constitution is among the hardest to change on earth.) By the same token, the mini-constitution that is the Second Amendment opens by declaring a people in arms to be the ultimate guarantor of freedom, but then it goes on to say that the people's government lacks the freedom to alter individual gun rights. Since the 1930s liberals have succeeded in circumventing the first restriction via the miracle of judicial interpretation, a modern form of transubstantiation that allows them to alter the essence of the Constitution without changing so much as a comma. But a return to an individual-rights reading of the Second Amendment would mean a rollback of free-form judicial review. By returning the amendment to its original meaning, such a reading couldn't help but strengthen the old civic-republican view of an expansive state as a threat to liberty.

This is profoundly reactionary and profoundly confusing. Are the people sovereign or not? Are they the protectors of liberty or a threat? The answer, according to the Big-C and little-c constitution, is both. Although legal academics like to think of the Constitution as a model of reason and balance, the Second Amendment puts us in touch with the document's inner schizophrenic--and, consequently, our own. Thanks to it, we the people know that the people are dangerous. Therefore, we must take up arms against our own authority. We are perennially at war with ourselves and are never more alarmed than when confronted by our own power. The people are tyrannized by the fear of popular tyranny.

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