The Second Amendment and the Gun-Rights Argument: Part One

Mark V. Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School. He is the author of fifteen books, most recently Out Of Range: Why the Constitution Can’t End the Battle Over Guns. Out Of Range is honest guide to both sides of the 2nd amendment debate and an insightful analysis of how our view of the 2nd amendment reflects our sense of ourselves as a people. Part of Oxford’s Inalienable Rights Series, Tushnet’s book challenges our views of one of our most controversial freedoms, the right to bear arms. In the post below Tushnet lays out the argument. Be sure to check back tomorrow for part two.

With Constitution Day today, it seems like a good time to talk about a constitutional issue that’s likely to get to the Supreme Court’s attention pretty soon: the Second Amendment. Shortly after it opens its term in October the Supreme Court will decide whether to hear an appeal from the District of Columbia challenging a court of appeals decision striking down the city’s ban on handgun possession as a violation of the Second Amendment’s guarantee of the “right to keep and bear arms.”

In these posts I’ll outline the arguments on the gun-rights and gun-control side, and then try to explain why whatever the Court does is unlikely to get us out of the blind alley of gun policy today.

Let’s begin with the best arguments for the gun-rights side. The Second Amendment has a preamble – “A well-regulated Militia, being necessary to the security of a free State” – and a rights-guarantee, “the right of the people to keep and bear Arms, shall not be infringed.” Without the preamble, interpretation of the Second Amendment would be pretty straight-forward. The right to keep and bear arms would be a right lodged in each of us as an individual, just as freedom of speech is.

From the gun-rights point of view, the preamble doesn’t change anything, and might even support the gun-rights position. The preamble might simply explain why we have an individual right to keep and bear arms, and not place any condition on who has the right or when it comes into play. More important, though, there’s a fair amount of evidence from the framing era – that is, from the period when the Second Amendment was proposed and adopted – that the preamble’s reference to the “Militia” pointed not to the state-organized militias (roughly, today’s National Guard) but rather to what some have called the “unorganized” Militia, or, as some put it in the founding era, the “body of the people.”

The unorganized Militia consisted of everyone in the society, and not just those pulled together by state officials in the organized militia. The unorganized Militia – and the right of members of that militia, which is to say everyone, to keep and bear arms – was important for two reasons. The unorganized Militia was one of the methods the people could use to resist an oppressive government, just as they had resisted the oppressive British government during the Revolution. But, to resist effectively, the people had to have weapons. In addition, the people gave up some of their rights when they formed a government, but only because they were assured that the government would protect them. If the government fails – if, for example, marauding criminals roam freely – then the right to keep and bear arms allows the people to protect themselves.

These arguments, based on the Constitution’s text and some aspects of the understanding of the Second Amendment’s terms as they were used in the late eighteenth century, aren’t intrinsically bad. Gun-control proponents can point to some material from the founding era supporting other interpretations of the Amendment, but my judgment is that, on balance, the gun-rights position has somewhat more support in the originalist materials than the gun-control position.

But that’s not the end of the story, as I’ll indicate in my next posting.