Finally Some Thoughts on the The DC Gun Case
Originally published at The Mouse's Tale. You can comment here or there.
Well, it took me long enough, but I think I finally made up my mind about DC v. Heller. Despite everyone on both sides of the issue being absolutely convinced of the correctness of their positions, I actually found this case to be pretty hard. Much to my pleasant surprise, both parties in the case did a wonderful job of describing the history of the Second Amendment. The parties’ briefs were obviously meant, first and foremost, as appeals to originalism.
The trouble with these competing histories is that each one contained a fatal flaw. On the pro-gun side, I was never able to find any argument which gave any effect at all to the prefatory clause of the Second Amendment, in severe violation of the rule that nothing in the Constitution should be read to have no meaning. Also on the pro-gun side was the problem, albeit a less severe one for me, of assuming that the Second Amendment confers some personal right to self defense with a gun; a right which has no textual basis whatsoever. On the anti-gun side, despite a lot of people saying that the Second Amendment provides an individual right, I found very little in their arguments which suggested that they actually believed it. Ultimately, I felt that the case came down to whose historical narrative was stronger, and that was an area which I was woefully unequipped to judge. And so, that’s where I got stuck.
What finally broke the logjam was when I realized that those historical narratives were completely beside the point. The only ground which must be surveyed to answer a Constitutional question is the territory of text and logic. If an answer is provided there, the case is over. I am now convinced that text and logic alone answer the question of what the Second Amendment actually means. And in my view, it isn’t exactly what either side has been saying.
As I’m sure we all know by now, the Second Amendment states:
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.
This does two things. First, it establishes that it is talking about a militia, which means that the militia must be part of any answer to questions of the amendment’s meaning. Second, it confers on every individual a right to keep and bear arms, which means that individuals acting alone must be the amendment’s beneficiaries. At first blush, an individual right that has something to do with a collective doesn’t make a whole lot of sense, which is, I think, why the very next step most people take is to seek out the amendment’s history. Since I’ve said that history doesn’t matter, I’m going to resist that temptation.
Instead, what I’m going to do is take a cue from Justice Stevens’ dissent. At one point, he likens the right to bear arms with the right First Amendment rights to petition and assemble, as rights which belong to “the people” but only make sense collectively. According to Justice Stevens, that means that the right, although it’s an individual one, can only attach to people who qualify into it by being part of a group. I think that is precisely backward. Both the right to petition and the right to assemble must attach before a petition or assembly have come into existence, otherwise, the government could, in principle, prevent either one before the collective forms by arresting the first individual involved. Put another way, both rights protect not just belonging to a group, but also forming up into one. In my view, the Second Amendment does the same thing: It protects not merely being in a militia, but also forming up into one.
A militia, it may be obviously said, is useless without arms. A militia is also useless without the individuals that compose it. In my one and only concession to history, I’ll note that even the formal militia was a rather fluid body built up from the general populace. As a result, we have a militia, we have a bunch of people, and we have a very fuzzy line distinguishing the two. For this to make any sense at all, people must be able to arm themselves for service on a moment’s notice. And, because going to the garrison would take too long, people need to be able to have their weapons with them. Thus, to allow a militia, people must have some reasonable means of arming themselves; or, conversely, that the government may not make it unreasonable to own a usable weapon.
With that said, I now turn my attention to the facts at issue in Heller. DC, like the rest of the country, is subject to federal laws regulating and prohibiting the ownership of certain types of weapons. On top of those laws, the District added two additional laws, one prohibiting hand guns and the other regulating away the keeping of usable forms of other standard civilian weapons. Standing alone, it is highly doubtful that any of these laws interfere with the reasonable ownership of a usable weapon. A ban on handguns, for instance, still allows for the purchase and use of shotguns and other weapons of the sort. A regulation that shotguns must be disassembled still allows for having a handgun at the ready. There is also nothing in the Second Amendment which suggests a right to keep and bear the arms of the owner’s choice (and, indeed, history seems to indicate that the government could tell you what kind of gun to buy; if you wanted a different kind of gun, but couldn’t afford to buy more than one, then that was simply too bad for you). Taken together, however, there doesn’t appear to be a whole lot of choice left for what type of usable weapon an individual can reasonably own.
Without a reasonable alternative, an individual’s ability to form up into a militia is impacted, and the Second Amendment right is thereby infringed. Something needs to give way; in a case asking about the handgun ban, where striking down the handgun ban would bring the right back to life, the choice to be made is obvious. The handgun ban cannot survive. However, that is not to say that striking down the handgun ban is the only choice; merely that it is the only one that the case at hand permits. If the District wishes to legislate the handgun ban back into effect, it may do so, as long as it eases enough other regulations that the overall right remains intact.
Although it is my view that the above discussion resolves the case, I think it worth talking a bit more about the personal right to self defense with a gun, because of how serious an issue that is for the pro-gun movement. To reiterate what I said above, that right is nowhere to be found in the Second Amendment, and the Court was wrong to invent one there. That doesn’t mean that no such right exists. The right to defend yourself by a means proportional to a reasonably perceived threat is a right as old as the common law and is well recognized both by the courts and by statute. Given that the Second Amendment tells us that people are entitled to guns of some kind, the average person will select a type of gun which is useful both for militia service and for self defense. Nobody has suggested that an individual has a gun in a situation where its self-defensive use is warranted should be afraid of prosecution. The Second Amendment is not at all required to guarantee that.
For the reasons outlined above, I would hold that the DC handgun ban is unconstitutional to the extent that it tips the entire body of District law against giving effect to the right to have a weapon at the ready for forming up into a militia. I would, therefore, concur in the judgment of the Court.