Cass R. Sunstein

Staring down the barrel

Email|Print|Single Page| Text size + By Cass R. Sunstein
December 2, 2007

THE SECOND AMENDMENT to the Constitution says that "the right of the people to keep and bear arms shall not be infringed." Now that the Supreme Court has agreed to interpret the amendment, gun advocates are asking: What could be plainer?

But the Second Amendment is anything but plain. Indeed, no other provision of the Bill of Rights remains nearly so mysterious. And the high court's relative silence on the issue is revealing.

For years, the question of whether the amendment guarantees individuals the right to own guns was essentially settled in the lower federal courts, which ruled that it did not. And until now, the Supreme Court justices showed no desire to unsettle that consensus.

Those who insist that the amendment creates an individual right to own guns must overcome three serious obstacles.

The first involves the original meaning of the provision. The full text of the Second 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." The reference to the "well regulated militia" plunges us into an interpretive minefield.

Many people believe that the Second Amendment means only that the federal government may not abolish state militias. On this view, "the right of the people to keep and bear arms" is a collective right - that is, the right of "the people," taken as a whole, to maintain organized militias.

Many members of the founding generation favored the Second Amendment because they believed that the young country should be protected by citizens drawn from the body of the people. In the debate in the House of Representatives over what became the Second Amendment, Elbridge Gerry asked, "What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty."

If this view is right, then the Second Amendment does not create an individual right to own guns. Even if this view is wrong, though, gun advocates face a second obstacle. Quick question: In what year did a federal court of appeals first invalidate a law on Second Amendment grounds? Quick answer: 2007!

This fact is remarkable. More than two centuries into the nation's history, no federal court of appeals had ever invoked the Second Amendment in order to strike down state or federal legislation on guns - despite many opportunities to do just that. Time after time, federal judges have concluded that, as one court of appeals put it in 1971, the Second Amendment protects the "right of the state to maintain a militia" and does not recognize an "individual right to possess a firearm."

Nor has the Supreme Court ever recognized such a right. In 1939, a unanimous ruling by the court upheld a ban on possession of a sawed-off shotgun. The court's opinion was not a model of clarity. But it did say that the Second Amendment's "obvious purpose" was "to assure the continuation and render possible the effectiveness of" the militia.

In the ensuing seven decades, the court had refused to return to the question. That silence, in the face of repeated challenges to gun control laws, suggests that its members have not been enthusiastic about the claim that the Second Amendment creates an individual right. It took aggressive action by the National Rifle Association and its allies, a flurry of scholarly rethinking, and a number of bold Republican appointees to the federal bench to give real life to the view that the Second Amendment might protect an individual right after all.

As late as 1992, Chief Justice Warren Burger, a conservative Nixon appointee, publicly declared that "the Second Amendment doesn't guarantee the right to have firearms at all."

Even if it does, gun advocates face a final obstacle. Constitutional rights are rarely absolute. Even in the domain of speech, courts allow governments to regulate obscenity, libel, false advertising, and much more. The government can regulate some rights if it can show that it has a "rational basis" for regulation.

So if the Second Amendment does create an individual right, perhaps the government can overcome that right whenever it has a good reason for doing so - as, for example, by banning those with criminal records from getting handguns, or by requiring gun-owners to keep their guns in secure places at home.

This spring, the Supreme Court will probably issue its first major ruling on the Second Amendment. Here's a prediction: Dominated as it is by Republican appointees, the court will adopt the individual-rights interpretation. It will accept a controversial reading of the amendment's original meaning. It will run roughshod over long-settled understandings among the federal courts.

At the same time, the court will recognize that reasonable restrictions are permissible - and thus will energize, rather than end, the national discussion about the regulation of guns.

Cass R. Sunstein is a professor at the University of Chicago.

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