I wrote last night that, whether I like it or not, the 2nd Amendment really was intended to protect an individual right rather than a collective right to own firearms, so yesterday’s SCOTUS decision wasn’t all that shocking to me. My opinion is not based on case law but on the history of the state militias in the early years of the republic and also on some primary sources from those early years that seem to assume an individual right. I have not read the Heller decision and have no idea how the justices came to their conclusions. I’m just explaining how I came to mine.
Cass Sunstein, a professor at Harvard Law School, has an opposite opinion on Heller. He writes in today’s Boston Globe that yesterday’s decision was “a dramatic departure from how the Constitution has long been understood.” Sunstein knows law a lot better than I do, so I’m not going to argue with him.
On the other hand, Eugene Robinson’s thinking on the matter is pretty close to mine.
I’ve never been able to understand why the Founders would stick a collective right into the middle of the greatest charter of individual rights and freedoms ever written — and give it such pride of place — the No. 2 position, right behind such bedrock freedoms as speech and religion. Even Barack Obama, a longtime advocate of gun control — but also a one-time professor of constitutional law — has said he believes the amendment confers an individual right to gun ownership.
And even if the Second Amendment was meant to refer to state militias, where did the Founders intend for the militias’ weapons to be stored? In the homes of the volunteers is my guess.
I can’t say what the Founders intended, but the 1st Congress declared that it was up to individuals to not just store their muskets in their homes but to acquire the muskets on their own. In the Militia Act of 1792, Congress stipulated which citizens were required to enroll in the militia, then said —
That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.
This is the biggest reason why I think the 2nd Amendment intended an individual right, not a collective right.
I believe the Constitution is a living document that has to be seen in light of the times. I believe the Supreme Court, in Roe v. Wade, was right to infer an implicit right to privacy, even though no such thing is spelled out. I think the idea that the Founders’ “original intent” should govern every interpretation of the Constitution is loony — as if men who wrote with quill pens could somehow devise a blueprint for regulating the Internet.
But I also believe that if the Constitution says yes, you can’t just blithely pretend it says no. Yesterday’s decision appears to leave room for laws that place some restrictions on gun ownership but still observe the Second Amendment’s guarantee. If not, then the way to fix the Constitution is to amend it — not ignore it.
I agree again. We are not being consistent if we read one amendment in the Bill of Rights in a less liberal light than we read the rest of it. And if it becomes acceptable for one amendment to be ignored, then any of them can be ignored.
That said, at the very least I want state and local governments to have some ability to regulate, register, and control firearms in their jurisdictions. Adam Liptak writes in today’s New York Times that the Heller decision allows room for this. Liptak also writes,
As the list of affected localities demonstrates, gun control laws of the sort most likely to be affected by Thursdayâ€™s decision are almost exclusively urban. Indeed, some 40 states pre-empt local gun regulations, indicating significant tensions between state lawmakers and municipal officials.
The NRA and other gun-rights groups already have mounted a campaign to force urban areas to adopt the same minimal firearm restrictions as one might find on the open range in Montana. In other words, they want one national standard, and the hell with the right of state and local governments to judge what regulations or restrictions — short of a ban — are best for their citizens.
I’ve lived or worked in rural areas, in suburbs, and in Manhattan. The realities of population density have a huge impact on peoples’ attitudes toward firearms. I wrote back in 2004:
… years ago I lived in a suburb of Cincinnati, and I remember that usually whenever a squirrel set off somebody’s home security alarm the menfolk of the neighborhood would come running out of their homes waving handguns, ready to shoot some fleeing perpetrator.
I remember this vividly because my infant daughter’s room was in a corner of the house nearest the street and also nearest the home of one of the more rabid gun-waving neighbors. A few times I scooped her out of her crib and brought her into the middle of the house to keep her safer from stray bullets. Fortunately the posse never actually shot at anybody.
In NYC neighborhoods with high drug traffic it sometimes happens that a gunfight breaks out, and stray bullets kill an innocent child. This does not inspire most New Yorkers to go out and buy their own guns to protect themselves. On the contrary, New Yorkers generally don’t approve of people carrying guns for protection.
After living here awhile, I came to understand why. New Yorkers habitually seek safety in numbers. If you keep to areas where there are lots of other people, you are generally safer than if you are somewhere isolated. New Yorkers prefer subway cars and elevators with at least a couple of other people inside, even if the other people are strangers. They stay in well-lit, high-traffic areas.
In short, they insulate themselves from harm with lots of nearby human flesh. Thick crowds of strangers that an Ohioan would find suffocating are comforting to a New Yorker. The thought that somebody in the flesh shield might whip out a gun and start shooting that flesh is more frightening to New Yorkers than the burglaries that worried my neighbors in Ohio.
I’m not personally opposed to gun ownership. If I lived in an isolated cabin in Montana I’d probably keep a loaded shotgun on the wall, too. But in densely populated areas, guns may not be the self-defense tool of choice. This is a point many “heartlanders” cannot grasp.
BTW, the guy I called “one of the more rabid gun-waving neighbors” was married to Mean Jean Schmidt’s twin sister. But that’s another story.
Wayne LaPierre of the NRA is already hollering about the defeat of elitism: â€œBehind every gun control law is a ruling elitist class that canâ€™t stand your ability to take care of yourself.â€ So the NRA will try to override every municipality in the U.S. whose citizens, through their elected officials, have decided they prefer certain gun control laws. I swear, the word “elitist” is losing all meaning except “anyone I don’t like.”
Jay Bookman of the Atlanta Journal-Constitution writes, “You know, this victory could eventually backfire politically on LaPierre and his buddies.” I think it could, too.