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The Confused Constitution, July 26, 2011
In 2008 the Supreme Court of the United States decided its first major Second Amendment case in about 70 years. The Second Amendment reads: "A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed." To the uninitiated, the wording of the amendment does not provide an entirely clear meaning: the "people" have the right to keep and bear arms, but who are the "people"?; does the word "militia" refer to the people?; the said right shall not be infringed, but then how are the people/militia to be well regulated? More generally (and controversially), does the amendment guarantee individuals the right to keep and bear arms, or, instead, militias? In Washington, DC v. Heller (2008), the plaintiff brought suit against the federal district, claiming that DC's strict handgun laws (making it nearly illegal to own a handgun) violated the plaintiff's right to keep and bear arms, as guaranteed by the Second Amendment. The federal trial court ruled in favor of the respondent, ruling that the Second Amendment only guarantees the right of militias to keep and bear arms. The appellate court reversed the initial ruling, saying that individuals are guaranteed the right to keep and bear arms.
The case then went to the Supreme Court. Finally, it was thought, the Court would settle an issue that had been near the core of modern American politics; indeed, the pro-gun-rights / pro-gun-control cleavage has been near the heart of major elections for quite some time, with conservatives opposing gun control and liberals campaigning on stiffer gun control policies to "make our streets safe". The Supreme Court ruled in a vote of 5 to 4 (along traditional lines, to no-ones surprise) that the Second Amendment does indeed protect the rights of individuals, regardless of whether they are a member of a militia. Antonin Scalia's majority opinion is a classic example of originalism: Scalia traced the origin of the Amendment, from its English heritage to its drafting and subsequent ratification. He also examined the contemporary meaning of the word "militia" and found that it meant the people generally (white males), who were often a frontier town's only means of defense; moreover, any man over the age of 18 with a gun belonged to a militia, according to the word's contemporary meaning.
Interestingly, though, Justice Stevens' minority report also used originalism as a part of its argument. Stevens, like Scalia, traced the origin of the Amendment to the post-revolutionary period and discovered that the Amendment---if we are to be faithful to the framers of the Constitution's Bill of Rights---ought only to protect people's right to own firearms if they are members of a militia, which in today's time means the National Guard. Justice Stevens' also mentioned that court precedent points in favor of his view: US v. Cruikshank, Presser v. Illinois, Miller v. Texas, Robertson v. Baldwin, and US v. Miller all pointed towards a pro-Federalism, anti-individual right. That is, the Second Amendment precedent said that the Amendment did not apply to the states, but only to the federal government. The precedent also said that a right to keep and bear arms is not an absolute right: guns can be regulated just like speech can be regulated and policed (you can't "shout 'Fire!' in a crowded theater").
If we look a little bit closer, we realize, sadly, that bits of the precedent put the liberals in somewhat of a historically inspired bind. One case, US v. Cruikshank, exposes our nation's troubled past in regards to racial relations. The event that led to this case was one of the worst Reconstruction-era events to have plagued our history. A little background is necessary: the Civil War ended in 1865 with the defeat of the Confederacy, after which Federal troops occupied the South to restore order, enforce law, and protect newly-freed blacks. New laws and regulations were imposed on the South; blacks were enfranchised with the Fifteenth Amendment, and the Enforcement Act of 1970 was issued to protect blacks against mob violence (making it a Federal crime to do so). In many areas of the South, blacks formed the majority of their political constituencies, which meant that Republican politicians and pro-Republican political institutions represented many areas of the post-war South. As Reconstruction began to wane, Southern Democrats began to gain the upper hand while quickly chipping away at the rights of blacks through intimidation, pseudo-slavery, violence, and grandfather clauses. One event in particular, the Colfax Massacre, saw an armed gang of whites (i.e. a militia of whites) attack Republican freedmen who were barricaded in the town of Colfax's courthouse. A skirmish ensued wherein three whites and anywhere from 100 to 280 blacks were killed.
After the bloodbath, several members of the mob were charged with violating the Enforcement Act. The Supreme Court ruled that the Enforcement Act did not apply here, because the right to due process, privileges and immunities, and equal protection---all of which were the lifeblood of freedmen---did not apply against individuals (read: armed Klansmen), only the States. Moreover, the court ruled that the First Amendment right to assembly and the Second Amendment right to firearms did not apply to the States, i.e., these rights were not incorporated against the states. Put simply in the words of the late Leonard Levy, "Cruikshank paralyzed the federal government's attempt to protect black citizens by punishing violators of their Civil Rights and, in effect, shaped the Constitution to the advantage of the Ku Klux Klan". Blacks were no longer to be protected by Washington against armed mobs, and states had the power to regulate firearms, which often meant prohibiting blacks from owning them.
All of this digression is to say that Stevens relied on a lachrymose and racist precedent; but this fact also highlights the one true and obvious characteristic of the Second Amendment: it is a confusing, shape-shifting, important, and discordant amendment; loudly nested in the Bill of Rights, yet easily combustible like dry gunpowder on tinder. Enter law scholar Mark Tushnet's book, "Out of Range". True to its subtitle ("Why the Constitution can't end the battle over guns"), the book does not try to settle the matter on the Second Amendment. Published in 2007 (written before DC v. Heller reached the Supreme Court), the book says that there are good arguments on both sides (conservative and liberal; i.e. guns-rights proponents and gun-control proponents), but the constitution can't end the "battle" over gun policy because the "battle over guns" is part of a larger culture war. Since there are plausible arguments on both sides, this means that both sides stick to their arguments; their policy preferences, which originate from their respective "cultures", shape their constitutional analyses.
We have already seen some of the constitutional arguments put forth by the two camps, they are worth juxtaposing here: the pro-gun-rights camp (I am, for the sake of space, grouping several arguments into one here) argues along Scalia's lines. This argument says that the framers, following the long tradition of English law, drafted an amendment that would guarantee, in writing, a right that had long been central to English and early-American life. Such a right guaranteed individuals the right to own firearms for personal protection and civic duty. This right, "being necessary for the security of a free state", also provides citizens with the right to defend against unlawful government action. In contrast, the pro-gun-control argument says that the framers understood that the right to own firearms cannot be severed from militia service; effectively giving no respect to an "individual right". Moreover, precedent supports this position.
Tushnet takes the reader through a vivid and deeply nuanced tour of each argument, stopping to point out the objections to each. His greatest virtue is that he writes from an impartial standpoint; he is neither for nor against. He writes that the pro-gun-right argument has slightly more merit in regards to its originalism than does the pro-gun-control argument, but the latter has the upper hand in post-1792 developments. With no clear answers here, there is one remaining place to turn: policy. When embodied in real life, do either of the two stances (pro/anti) respective policy measures hold the high ground? For example, do more guns cause less crime?, or do more regulations mean less violence? Again, the answer is not obvious. Tushnet spends most of the "policy" section of the book exploring the "more guns, less crime" thesis and its discontents. Using it as an archetype for other policies, Tushnet notes that there are statistics both supporting and disproving the thesis. Alas, he says, there is no consensus on matters of policy: do more cops cause less crime? do trigger lock laws correlate with less accidents? do more guns on the streets cause less violent crime, but more car thefts? do abortions cause less crime?... the jury is out, and its time in the deliberation room is extended with each new statistical report that comes in. Indeed, the book's main thesis says, the jury will remain out for a long, long time, and there is nothing the constitution can do to solve the problem. To sum up Tushnet's main point, "Disputes over gun policy have become deeply enmeshed in the culture wars between liberals and conservatives, between people who live in the city and people who live in the country."
In 2010 the Supreme Court ruled in McDonald v. Chicago that the Second Amendment may be applied against the states pursuant to the Fourteenth Amendment's due process clause. This decision finally settled the matter of incorporation where DC v. Heller could not...
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