The Supreme Court Guns Down Precedent

The Second Amendment is a difficult text to decipher. The two clauses do not seem to support each other, yet they are linked with only a measly comma separating them. The amendment reads:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. (1)

In the past, the courts have seen the second amendment as a collective right, not an individual right. It is easy to see why. As a collective right, states can institute reasonable restrictions on guns as long as a general right to bear arms still exists. Otherwise, it would be difficult for cities with high crime rates to restrict guns commonly used by criminals, while rural areas with low crime rates enjoy fewer restrictions.

On Tuesday, the Supreme Court heard oral arguments regarding a Washington DC law that effectively banned handguns in the city. District of Columbia v. Heller (2) is a case that could decide how all gun regulations, be they state, federal, or local, are handled in the future. The debate quickly boiled down to a choice between the individual rights argument and the collective rights argument.

The original intent of the Founders does not help much. During the time of the revolution, there was not much private gun ownership in the colonies. There was not an abundance of weapons for the revolutionary army, let alone for private citizens. Of course, there were some, and it is unlikely that anyone considered them much of a threat. The Founders could not have envisioned the abundance of firearms available to the average person today. Why protect gun ownership as a right, then, if not many individuals had guns? If, as the Second Amendment suggests, it is to maintain a well regulated militia, individuals may no longer have any right to own any gun. Militias are not the fixture in the American landscape that they once were (and I do not count the separatist rural conclaves that call themselves “militias”). The closest thing we have now is the National Guard, which is not a militia but which serves the same function. The armed forces are now responsible for “the security” of all the states.

With the above interpretation, if there is no militia, there is no reason for people to bear arms. Like the third amendment, which prohibits soldiers quartering in a house during peacetime without the owner’s consent, the impetus of the amendment has faded over time. Such provisions have fallen into disuse. Yet the text still nags us. “The right of the people to keep and bear arms, shall not be infringed.” If the first clause is mere dicta, and the second clause is the only active element, then the right to bear arms still exists, though militias have gone the way of the dodo.

The arguments against gun control are many, and run the gambit from economic formulas to pithy catchphrases based on assumptions about human nature.

One argument is that gun control simply doesn’t work. Despite the efforts to reduce the number of guns on the street, the argument goes, people still have them, and gun violence is still be high. For this reason, gun owners believe they must have a gun for self-defense. Australia’s effort to control firearms was the subject of a well-circulated myth. (3) Australia’s rate of gun-related murders, as of 2002, was .25 per 100,000. In the United States it was 4.08.(4) According to statistics, the total number of gun deaths in Australia dropped from 437 in 1997 to 327 in 1998. (5) That includes accidental deaths and suicides. Gun control is not the only factor in the reduction, but it is clearly a significant factor.

I could go through each of the pro-gun arguments one by one, but I don’t have the space to write a book here. I will conclude with one of my favorites: we need guns to fight the tyranny of the government. Like our revolutionary forefathers, we may have to overthrow an oppressive regime. Such is the plea of the separatist groups, and more than a few mainstream Conservatives.

There are several problems with this argument. First, there is the anti-democratic nature of such a violent overthrow. If the majority of citizens felt the need to change the government, violence would not be needed. The only reason to overthrow a democratic government is because a minority is unsatisfied with the outcome of the vote. Separatists are not necessarily concerned with democracy anyway. What if America elected a Hitler, who won an election but immediately made efforts to consolidate power? The reality of American government is that the very bureaucracy that frustrates many a conservative would also bog down any efforts of a tyrant to dispose of the constitution. Even with a strong president, the federal government changes slowly. Oh, so slowly. Such a change, I suppose, is not impossible—I mean the possibility does not quite reach zero—but it is so unlikely that it seems like a strange thing with which to preoccupy ourselves. It certainly hasn’t happened in Australia or the UK, both of which have much stricter gun laws that the U.S.

Another problem is the sheer impossibility of overthrowing a government like that of the United States. If any separatist group gained enough power to actually be a threat to the government, the army could wipe them out in a matter of seconds. Such a group would not likely even see its enemy. They wouldn’t have a chance to discharge their firearms. What if they went underground, ala the Iraq insurgency? Ah, but the United States is not Iraq. We have much better law enforcement and criminal detection capabilities. A few may succeed, as in the case of Timothy McVeigh, but terrorist acts tend to work against the separatists’ goals. It repulses the population. Don’t forget, McVeigh was caught, and he never constituted any real threat to the government.

The McVeighs of the world are not the ones we have to worry about. The problem is that all of us can become intensely angry at times. For the wife who finds her husband cheating, or for the businessman who discovers his partner has been stealing, a flash of white hot anger can overcome reason. Most of us have a mental barrier that stops us from doing anything crazy when we get angry, but who can honestly say that nothing could break down that barrier? Even if we can’t imagine it happening to us, we can surely imagine how it happens to others. The court dockets are filled with such cases.

One group that should be intensely worried about the outcome of District of Columbia v. Heller is the law enforcement community. If the Court decides that gun ownership is an individual right, pretty soon we will be right back in court determining how far that right extends. Does it mean cop killer bullets can’t be banned? Does it mean there can be no restrictions on fully automatic assault rifles? Police officers will face those weapons on the streets every day. When we revisit the issue again, it will likely be over the bodies of slain cops.

Instead of creating a new right that has never before been recognized by the courts, it makes more sense to stick with the current approach. The right to bear arms is a collective right. It can be regulated. States can narrow or broaden restrictions based on their individual needs. Gang territory in Los Angeles does not need the same gun laws that would apply to Oklahoma hunters.

I do not think that the complete banning of firearms is realistic or necessary. There are plenty of innocent uses for guns, including sport shooting, hunting, and collecting. There is no logical reason why we can’t allow lawful gun ownership, while also giving police the legal tools they need to protect themselves.

© 2008 Bryan Lower

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