Yesterday, Mark V. Tushnet author of Out Of Range: Why the Constitution Can’t End the Battle Over Guns, introduced us to the gun-rights argument. Today Tushnet takes a closer look at the gun-control position. Be sure to check back tomorrow for part three in this series.
Gun-control proponents support their position with several arguments. First, the text: The Second Amendment does refer to the militia, and the gun-rights position deprives the Amendment’s preamble of any operative significance, which is unusual in constitutional interpretation. But there’s more to the textual argument. The Constitution refers to the Militia in two additional places. It gives Congress the right to laws providing for the calling forth of the Militia, and it reserves to states the right to appoint the officers of the Militia. These references clearly deal with the state-organized Militia, and we ought to interpret the Second Amendment to use the term in the same way. The Second Amendment would then prohibit Congress from disarming the state-organized militia – and would thereby preserve the ability of those militias to resist an oppressive national government.
Gun-control proponents bolster their position by observing that in every other context we interpret the Constitution by referring to more than the text and original understanding. We look at tradition and precedent. As to tradition the easiest way to make the gun-control proponents’ point is this: We have had laws regulating the ownership and use of weapons for nearly two hundred years, and with truly trivial exceptions every one of those laws had been upheld by the courts. The long-standing judgments by legislatures that they have the power to regulate gun possession and use should count for something, indeed for quite a lot, when we try to interpret the Second Amendment.
But it’s not just legislative judgments. Courts have regularly upheld gun control statutes, even ones that restrict ownership and use quote substantially. In the 1930s the Supreme Court rejected a challenge based on the Second Amendment to a national law making it a crime to possess sawed-off shotguns. That was the last time the Court considered the Second Amendment directly, although in recent decades it has turned down opportunities to revisit the Second Amendment several times.
Again, as with the gun-rights arguments, the gun-control arguments aren’t open-and-shut. Good lawyers can massage the precedents to show that they don’t really reject the gun-rights position, for example. But, taken as a whole, the arguments for the gun-control position are just as good, and maybe a slight bit better, than the arguments for the gun-rights position. Nobody should think, though, that the arguments lean strongly in favor of one or the other side. Determining what the Second Amendment means involves the exercise of the kind of legal judgment that we always need in hard constitutional cases.
Next I’ll take up this question: Suppose the gun-rights position prevails, and the Supreme Court says that the Second Amendment protects an individual’s right to keep and bear arms. What regulations of that right might still be constitutional?