Reframing the constitutional debate over gun control.

The law, lawyers, and the court.
March 17 2008 3:25 PM

Putting the Second Amendment Second

Reframing the constitutional debate over gun control.

The language of the Second Amendment has been the obsessive focus of just about everyone interested in District of Columbia v. Heller, the D.C. gun-ownership case to be argued before the Supreme Court on Tuesday. That amendment is indeed important and much misunderstood. But Heller's facts, which involve the possession of a gun inside the home for self-defense, lie rather far from the Second Amendment's core concerns, as originally understood by the Founding Fathers. To think straight about gun control and the Constitution, we need to move past the Second Amendment and pay more heed to the Ninth and 14th Amendments.

Let's begin here: Suppose, for argument's sake, that we concede that everything gun-control advocates say about the Second Amendment is right. Suppose that the amendment focused solely on arms-bearing in military contexts, and that it said absolutely nothing about an individual's right to have a gun while sleeping in his own home or hunting in his own private Idaho. Would this concession mean that no individual constitutional right exists today?

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Hardly. According to the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people."  In other words, there may well be constitutional rights that are not explicitly set forth in the Second Amendment (or in any other amendment or constitutional clause, for that matter). In identifying these unenumerated "rights retained by the people," the key is that a judge should not decide what he or she personally thinks would be a proper set of rights. Instead, the judge should ask which rights have been recognized by the American people themselves—for example, in state constitutions and state bills of rights and civil rights laws. Americans have also established, merely by living our lives freely across the country and over the centuries, certain customary rights that governments have generally respected. Many of our most basic rights are simply facts of life, the residue of a virtually unchallenged pattern and practice on the ground in domains where citizens act freely and governments lie low.

Consider, for example, the famous 1965 privacy case Griswold v. Connecticut. The state of Connecticut purported to criminalize the use of contraception, even by married couples, prompting the Supreme Court to strike down this extraordinarily intrusive state law as unconstitutional. Writing for the majority, Justice William Douglas claimed that a general right of privacy could be found in between the lines of the Bill of Rights. But Douglas did a poor job of proving his case. It's hard not to smirk when the First Amendment is used to protect the erotic urges of a man and a woman seeking to "assemble" on a bed. Writing separately in Griswold, the second Justice John Harlan, widely admired for his judicial care and craftsmanship, offered a more modest and less strained rationale: "Conclusive, in my view, is the utter novelty of [Connecticut's] enactment. Although the Federal Government and many States have at one time or another had on their books statutes forbidding the distribution of contraceptives, none, so far as I can find, has made the use of contraceptives a crime." Thus, the basic practice of the American people rendered Connecticut's oddball law presumptively unconstitutional. It is also highly noteworthy that today around a dozen state constitutions and countless statutes speak explicitly of a right to privacy—a right nowhere explicitly mentioned in the federal Constitution.

Now take Harlan's sensible approach to the unenumerated right of privacy and apply it to Dick Anthony Heller's claim that he has a right to have a gun in his D.C. home for self-defense. When we look at the actual pattern of lived rights in America—what the people have, in fact, done—we find lots of regulations of guns, but few outright prohibitions of guns in homes as sweeping as the D.C. ordinance. We also find a right to keep guns affirmed in a great many modern state constitutions, several of which use the phrase "bear arms" in ways that clearly go beyond the military context. Unlike founding-era documents, modern state constitutions routinely affirm a constitutional right to "bear arms" for hunting, recreation, and/or self-defense.

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