At his second inauguration, President Obama alluded to his proposed gun violence legislation by mentioning the need to keep “all our children,” including those “in the quiet lanes of Newtown . . . always safe from harm.” Despite the creative argument raised by my former constitutional law student and now-CNN-commentator Erick Erickson in his Jan. 18 Telegraph column about the Second Amendment, Obama’s gun legislation if it passes will probably also pass constitutional muster, even if it seems utterly incapable of keeping “all our children . . . always safe from harm.”
Erickson suggested that a personal revolutionary purpose undergirds the Second Amendment. However, that reading of the Second Amendment was undermined in Justice Antonin Scalia’s majority opinion for the Supreme Court in the 2008 case brought by Dick Heller.
Heller, a security officer, who by day protected D.C. politicians with a gun, argued successfully that the District of Columbia could not restrict his ability at home by night to defend himself with a gun. Although the court held in Heller’s case that the Second Amendment enshrines a personal right for people to bear arms in self defense, it also noted that the right remains limited.
The court held that the right only extends to weapons “in common use at the time” of the Second Amendment’s ratification in 1791. The court explicitly suggested that “weapons that are most useful in military service -- M-16 rifles and the like -- may be banned” even if an effective militia today “would require sophisticated arms that are highly unusual in society at large.”
Erickson insists that the origin of the right was not just for self defense, but to enable forceful stands against potentially tyrannical governments that may threaten individual liberties. That’s not an entirely strained reading of the deeper history. The Second Amendment’s framers were mostly revolutionaries who had previously participated in a relatively loose, guerilla-style insurgency against the British.
Yet the specific language of the Second Amendment begins with mention of the role of bearing arms to enable a “well regulated militia,” so there’s reason to believe that any conceivable constitutional right to bear arms for political reasons was meant by the framers to be exercised in connection with a government-sponsored militia. The Second Amendment might also secure more personal rights too, but those seemed limited to more personal things like self defense and hunting food.
Most of the framers were initially revolutionaries, but by the time of the Second Amendment, those framers were proud leaders of two new governments, state and federal, that they wanted to protect, along with their own necks, from individual armed insurgents like disaffected Tories.
Also in Heller, the court’s majority cited two early treatise writers, William Rawle and Joseph Story, who wrote that the right to bear arms was not “to be abused to the disturbance of the public peace,” or for “any unlawful purpose”; and that even if the right could broadly be understood to be “in defense . . . of political rights,” the right to bear arms was only that which was “allowed by law” -- that is, defined by regulatory, not revolutionary, contours.
That probably was common sense to revolutionaries like the framers. They understood that the right of revolution is a natural one, dependent neither on law nor constitutional amendment. If you’re going to revolt, you’ve already decided that the tyrant’s laws are not all to be respected.
So as a practical matter, if Congress passes an assault weapons ban, a magazine limit, or requires more background checking, there’s little chance that such restrictions would be ruled unconstitutional.
While perhaps wishing Erickson were right, most gun owners are well aware of the limited judicial appetite for using the Second Amendment to cut back on gun regulation. Knowing that the vast majority of Second Amendment cases since Heller have upheld gun laws, the public rushes to buy guns and ammo. They accurately predict that, if rights to own modern, highly lethal arms are constrained, courts won’t stop Congress based on some constitutional right to revolt.
David Oedel teaches constitutional law at Mercer Law School.