Is There A Right To Bare Arms?

Sometimes it’s hard to take the debate over the Second Amendment’s right “to own and bear arms” seriously, since so many commentators are firing blanks.

In replying to these loud but ineffective arguments, on more than one occasion I have given in to the temptation (which, astute readers will observe, I’m doing now) to reply, “You’re right. In some circumstances there is absolutely no right to bare arms.” Department of Justice regulations for visitors to prisoners in federal detention facilities specify: “Visitor Apparel: All garments must have sleeves.” I learned about this regulation first hand when my wife, daughter, and I visited a friend then in a federal detention facility, and Jessie, our daughter, was forced to wear a long-sleeved something over her short-sleeved blouse — in late June, in Fort Worth.

The text of the Amendment states, in full:

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.

Observers who think this Amendment, alone among the Bill of Rights, protects no individual right argue that its entire meaning is to be found in the first (dependent) clause: “A well-regulated militia being necessary to the security of a free state….” To them, the Amendment means that whatever right there is to “own and bear arms” is limited to members of something like the National Guard, that the Amendment neither protects nor bestows any individual right, and that the recognition of any individual right (as the Second Circuit has just done, in invalidating the District of Columbia’s strict ban against handgun ownership) would undermine all gun-control regulation.

For example, in a recent Washington Post OpEd, Duke law professor Erwin Chermerinsky aruges:

There is a major debate among scholars and judges involving two competing views of the Second Amendment. One approach, adopted by the Supreme Court in 1939 and by most federal courts of appeals, sees the Second Amendment as preventing Congress from regulating firearms in a manner that would keep states from adequately protecting themselves.

This “collective rights” approach rejects the idea that the Second Amendment bestows on individuals a right to have guns. The alternative view, adopted by the D.C. Circuit on Friday, sees the Second Amendment as creating a right for individuals to have firearms. [Ed.: purists reject the idea that the Bill of Rights “bestows” any rights — it recognizes and protects them — but let that go for now.]

….

The assumption in this debate, and one that the D.C. Circuit followed Friday, is that gun control laws are unconstitutional if the individual rights approach is followed.

Similarly, in the New Republic University of Chicago law professor (and occasional advisor to Senate Democrats) Cass Sunstein writes:

If the Second Amendment is understood in these terms [as limited to state militias], it did not create individual rights, but it nonetheless had an important goal. That goal was to ensure that the national government, feared by many members of the Founding generation, could be checked by state governments equipped with their own military force.

In the last decades, almost all federal courts have ruled that the Second Amendment does not protect an individual’s right to own firearms. In these rulings, the lower courts said that they were following a 1939 decision by the Supreme Court, which upheld a congressional restriction on the transportation of shotguns. The Court ruled that the possession of a shotgun did not have a “reasonable relationship to the preservation or efficiency of a well-regulated militia.” The Court doubted that a shotgun “is any part of the ordinary military equipment or that its use could contribute to the common defense.” With these words, the Court seemed to suggest that restrictions on private use of guns would not violate the Second Amendment so long as those restrictions did not compromise the goal of preserving state militias.

This is a textually clever but historically weak argument. First, both Chermerinsky and Sunstein, though both are distinguished law professors, misstate the meaning of U.S. v. Miller, the the 1939 Supreme Court decision they cite, as it relates to whether or not there is an individual right. As Jonathan Adler recently pointed out on Volokh,

The Miller opinion devotes substantial space to showing that the Second Amendment right is connected to the militia, but it does so to determine whether the weapon at issue — a sawed-off shotgun — was the sort of weapon that would be used by a militia. If so, the Court suggests, the defendant would have had the right to keep the weapon in his home. As the Court explained:

In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

This interpretation is further supported by the Court’s discussion of the significance of the word “militia” in the Second Amendment:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

If members of the militia could not own their own arms, it would certainly be difficult to rely upon them to “appear bearing arms supplied by themselves.” Thus, the question was not whether an individual — or, at least, a “physically capable” male — could own a gun, but whether the rather unconventional weapon at issue was “the kind in common use at the time” that a member of the militia would be expected to own. In sum, Miller’s extensive discussion of the militia is fully consonant with the conclusion that the Second Amendment protects the rights of individuals to own guns.

Sunstein’s misstatement of Miller is compounded by the fact that he also misstates the weapon at issue in that case. It was not a “shotgun,” but a sawed-off shotgun or, as Justice McReynolds stated, “to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length….”

Miller held, in short, not that there was no individual right to own any weapon, but no individual right to own that particular weapon, a “shotgun having a barrel of less than eighteen inches in length,” a significantly different proposition.

To recognize, however, that the Second Amendment recognizes an individual right is not to say that that right is absolute, that all gun control legislation is unconstitutional. All it does (all!) is place the individual right recognized in that Amendment on the same plane as the other rights recognized in the other provisions of the Bill of Rights. Courts, after all, are not inexperienced at finding the limits of rights about whose existence there is no doubt.

For some reason this alarms liberals. Thus Sunstein asks:

Well over 200 years since the Founding, does it make any sense for courts to decide, for the first time, that they will start to oversee the legitimacy of gun control laws?

It makes about as much, or as little, sense as the federal courts not getting around to enforcing the First Amendment against the states until the first decades of the 20th Century. But not to Prof. Sunstein, who sees a slippery slope of rampaging conservative judges:

Some conservatives have asked federal courts to display more caution and humility; they seek to limit the judges’ role. More ambitious conservatives want the judiciary to promote the goals of their political movement. They applaud when judges strike down not only gun control laws, but also affirmative action programs, environmental regulations, restrictions on commercial advertising, and much more. They are entirely comfortable when courts exercise their authority against the elected branches — especially, perhaps, when those branches are in Democratic hands.

I can’t speak for any “conservatives,” but I will say that it is not only justified but required for courts to strike down measures that offend the Constitution. Nor does such a role for the courts portend the destruction of the republic as we know it.

Consider, for example, the Fourth Amendment, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If the logic of Sustein, Chermerinsky, et. al. were followed, any search would be legal, because it would be illegitimate for courts to presume to “oversee the legitimacy” of state and local views of what is and is not “unreasonable.”

Don’t worry. For better or worse, even when courts recognize the existence of an individual right to bear arms, they will have no more trouble finding limits to that right than they do upholding the reasonableness of a restriction against displaying bare arms.