Balancing the Lethality and the Right
The American relationship with guns is unique. The original bill of rights was provided after the first draft of the Constitution, as a way to appease the Anti-Federalists. The Federalists believed that the new central government should be one of enumerated powers and unenumerated (inalienable) rights. The backdrop is very important to understanding the elevated importance of the rights enumerated in the constitution. Our current federal government is one that has limited/enumerated powers—meaning that it only has the powers that are listed in the constitution. That and no more. The remainder of the powers are reserved—meaning that the states and the people can exercise them. The Bill of Rights is different. It lists individual rights that citizens can have—as against all American governments. Listing a right in the Bill of Rights doesn’t mean that the people did not have this right to begin with, and but for the Constitution, the people would not have these rights. This is because the government does not provide us our rights in the Constitution. It merely notes or lists them. The Constitution assumes a backdrop of God-given, innate/inalienable rights. The listing of a right in the Bill of Rights was due to the urging of the Anti-Federalists. This urging was due to an inherent skepticism by the founders when it came to central government, having been recently oppressed by the British monarchy, this being the onus for the creation of a new American nation.
This brings us to guns. The Second Amendment provides: “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.” There has not been much argument in court as to the meaning of this term. There was the Cruikshank case, and the Miller case in the late 1800s and early 1900s. There was the Al Capone era National Firearms Act. There was the 1986 Firearm Owners Protection Act. And that’s about it in the 19th and 20th century. The 21st century has led to the proliferation of media, the growth of cities and their population density, and the rise of mass shootings. This has led to increased policy advocacy, laws, and cases all aimed at limiting guns. But there had not been a case even defining the few words of the amendment.
Then came D.C. v. Heller and McDonald v. Chicago. Both should be required reading for all policymakers and keyboard warriors discussing gun cases. Both discuss the detailed history and backdrop of the amendment. These cases hold that there is an individual right to keep and bear arms in self defense. This right is not tethered to individual service in a militia or in the military or in any denomination of public service. It is incorporated by the due process clause—meaning that it applies to limit state governments’ passing of laws.
The reason that the relationship with guns in America is unique is due to our history. Individual citizens owned muskets and other Revolutionary-era firearms. The British would regularly seek to limit the ownership and use of firearms in order to maintain control over the American colonists. They ensured that Americans would pay taxes without representation, would quarter soldiers in American homes, and be economically dependent on the crown. The only medium through which Americans could break away and become independent was through the use of firearms. British knew this and would seize armories and powderhouses that could be used to arm colonists.
This history is long, very intricate, at times boring, but is invaluable in understanding American gun rights and ownership. The entirely abridged version is that individuals have the right to both “keep” (purchase, own, and store) and “bear” (carry on the person, and discharge). The backdrop of the amendment is the natural right to self-defense, which is unenumerated, as well as the enumerated right of the Second Amendment, which was weighed upon in Heller and McDonald. The Second Amendment right does not provide felons the right to bear arms, or the mentally ill, or the right to commercially buy and sell firearms without regulation. These are all historical understandings of the limit of the right at the time of the Second Amendment.
So where do we have constitutional ability to adapt policy to keep people safe in the 21st century? I would fall back on my progressive Republican framework (as well as that I discussed with regards to the Kyllo case). We need to be mindful of the history of the right to keep and bear arms for personal self-defense. But we also need to examine technologies and weapons modifications to regulate them and protect public safety. Does an individual have the right to conceal a handgun? I would submit they do, because this is necessary and sufficient to defend oneself in everyday situations. Does an individual have the right to keep and bear a “bump stock” that allows someone to fire hundreds of rounds per minute? I would submit not. This is not necessary for self-defense (one well-placed shot, or a few shots will do). It is also not sufficient (because accuracy is greatly affected, a target is harder to hit, and other innocent bystanders could be hit with a spray of bullets). Such a framework should be applied to existing weapons technologies. We should ask whether such a weapon is needed or is sufficient to provide an individual the ability to defend themselves. We should consider the threat to public safety, as well as the local propriety of the regulation.
There are also Second Amendment historical assumptions and implications that need to be regulated properly. A significant assumption which I have already alluded to is the screening of felon status and mental health. The current regulatory regime is not uniform nationwide. Different states have different laws with regard to background checks, law enforcement officer approval, concealed carry, and mental health. The Second Amendment, as well as the natural right of self-defense does not apply to felons. These are individuals who have broken the social contract with the government by breaking the law to a serious degree (a “felony”). Such individuals, it is assumed by the natural right and by the Second Amendment, should be screened and excluded from the keeping and bearing of arms. This is easy in principle, but in practice, it is difficult. What constitutes a “felony?” It is different in different states. Who should check felony status? Another hard question. Another group that is excluded is the mentally ill, and screening is presumed. But how does this screening occur? How are mental health issues diagnosed that would be serious enough to exclude the individual from keeping and bearing arms. Do these exclusions apply to people who live in homes with felons and mentally ill individuals? None of these questions are currently addressed by policy, but they are questions that are assumed by the historical scope and limitations of the natural right of self-defense and the Second Amendment.
We encounter problems, however, when individuals do not study the legal and American history of guns in America. Statutes providing “good cause” requirements for purchase of firearms have been ruled unconstitutional. These laws put the onus on the individual to demonstrate why they should have the right to bear arms, and allows an administrative or judicial officer to determine whether that cause is “good” enough. The natural right and the Second Amendment do not have that structure. They put the onus on the government to show why the individual should not have the right, because the government is granted its limited powers by the People, and government only has those powers which have been given by the People.
Another discussion could be that we, as the sovereign People, decide to cede our right to self-defense to the government. This can be accomplished, but would require a Constitutional amendment. Amendments are national processes, and require a supermajority. Contemporary polling shows that such a movement would be highly unlikely to have any success.
We are left with the middle ground—maintaining an individual right, while excluding dangerous instrumentalities that fall outside of the right. This involves looking at the scope of the right—what does it include and exclude? It involves looking at current weapons technologies—what technologies are not necessary or sufficient to provide for an individual to defend themselves? It also involves maintenance of the right through the fair and uniform enforcement of the law.
The policy ends are difficult to discern, and the politics are difficult to navigate. However, both sides should have an understanding of the history, legal precedent, tradition, data, and statistics in addressing the issue. Oftentimes, both sides lack an understanding of any number of these, and are instead guided by a political knee-jerk that assumes that a government can regulate something unless it is forbidden, and therein lies the uniqueness of the gun debate. Gun laws are not something that can be deliberated exclusively by anecdotes, hypotheses, statistics, or science like other policies not interwoven with natural rights—it is a debate that always should be centered around history, tradition, natural rights, and process. The anecdotes, hypotheses, statistics, or science is secondary to the lawmaking process. They should guide the process. But the process cannot and will not change. Policies need to change to adapt to lawmaking processes—compromises must be made, debates must be had. Only after the crucible of the lawmaking process will a successful policy emerge.