Gun Control

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Editors: Leonard W. Levy and Kenneth L. Karst
Date: 2000
Encyclopedia of the American Constitution
Publisher: Gale
Document Type: Topic overview
Pages: 2
Content Level: (Level 5)

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Page 1243

GUN CONTROL

"Gun control" is a constitutional issue because of the SECOND AMENDMENT : "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." Does this rather oddly phrased language place genuine constraints on the ability of government to regulate firearms? Those who favor vigorous control, including outright prohibition of the private ownership of handguns and other weapons, argue that the preamble to the amendment clearly rejects what has come to be called the "individual rights" view; instead, it limits any constitutional protection to members of an official militia, as organized (and regulated) by state governments. So long as Congress makes no effort to limit a state's right to place guns in the hands of its official militia, then the regulation of ordinary private citizens presents no problem. Opponents of gun control, on the other hand, read the amendment far more broadly, arguing that it protects the general public, all of whom were viewed by eighteenth-century theorists as members of the "general militia" (as distinguished from the "select militia" controlled by the state), and all with a right to keep and bear arms.

One should note that most argument about the meaning of the Second Amendment assumes that it applies to all governments. Yet the Supreme Court held, in a number of late-nineteenth-century cases, that it limited only the national government and did not extend to the states at all. In spite of the " INCORPORATION " of much of the BILL OF RIGHTS to the states through the FOURTEENTH AMENDMENT, the Court has certainly done nothing to suggest that the Second Amendment has been incorporated.

One might, then, argue that the Second Amendment, especially if construed in light of the likely aims of its original proponents in 1789, was designed to limit drastically the ability of a feared and mistrusted national government to limit the rights of members of the citizen-militia to keep and bear arms. But, just as the FIRST AMENDMENT notoriously limited only Congress while leaving states free to impair the FREEDOM OF SPEECH or to establish a religion, the states could be read as continuing to possess almost plenary power to regulate firearms however they wish. Not surprisingly, devotees of firearms, such as the National Rifle Association (NRA), are among the strongest proponents of incorporating the Second Amendment to apply it against the states. Indeed, there is evidence that the members of Congress who proposed the Fourteenth Amendment did assume that the "right to bear arms" would be extended to newly freed blacks who were facing violent repression from the Ku Klux Klan.

If one offers a limited interpretation of the Second Amendment, there are obviously no real barriers to regulation, by Congress or by states. But what if one accepts a view closer to the NRA's? Does that necessarily invalidate all governmental control of firearms? The answer most certainly is no.

One begins by noting the resistance among constitutional interpreters to almost any notion of exceptionless limits on governmental power. Whatever the linguisitic forms of, say, the First Amendment or the CONTRACT CLAUSE in Article I, section 10, both of which seem absoutely to limit the ability to infringe the freedom of speech or press or to impair the obligation of contracts, the Court has developed the COMPELLING STATE INTEREST doctrine (in regard to the First Amendment) that allows restriction when the reasons are good enough. Similarly, no serious person suggests that the Second Amendment would ever disallow even "compellingly" supported regulation. It is inconceivable, practically speaking, that even a far more "pro-gun" Court would refuse to limit access to guns by children or by convicted felons (who can, after all, be denied the FUNDAMENTAL RIGHT to vote). Nor can one imagine a Court's holding that what have come to be known as weapons of mass destruction are protected—and for good Page 1244  |  Top of Article reason, even if one takes the Second Amendment with utmost seriousness. After all, the most plausible explanation of the amendment's presence in the Constitution is the desire to allow ordinary citizens to "keep and bear arms" in case there is a need to use them against a corrupt or tyrannical government. (No one reads the amendment as actually protecting the use of arms. As a practical matter, one must win the struggle, as did the American revolutionaries in 1776, to escape punishment. Rather, the idea is that knowledge that the citizenry was armed and might resort to their use would serve to limit tyrannical propensities on the part of government.) The least plausible rationale for the amendment would be one that protected private tyrants who, for example, would be able to threaten mass destruction if the populace did not accede to their wishes. This suggests that the reach of the amendment could be legitimately confined to relatively low-level weapons whose practical power would depend on the joining together of many members of the community in rebellion against the presumptively tyrannical government.

It should be obvious that this rationale, even if faithful to the historical evidence, is shocking to many Americans. Thus most opponents of gun control emphasize far more the potential utility of firearms as a defense against criminals than the possible usefulness as a way of overthrowing the state. Ironically, though, the very word "militia," which can be used to justify a strong notion of Second Amendment liberties, itself suggests that the more palatable, at least to contemporary Americans, anticriminal argument as an attack on regulation of guns, probably has less constitutional warrant, at least from the perspective of ORIGINAL INTENT, than the more extreme argument emphasizing governmental tyranny.

SANFORD LEVINSON
(2000)

Bibliography

AMAR, AKHIL REED 1998 The Bill of Rights. New Haven, Conn.: Yale University Press.

COTTROL, ROBERT J., ed. 1994 Gun Control and the Constitution: Sources and Explorations on the Second Amendment. New York: Garland Publishing Company.

NISBET, LEE, ed. 1990 The Gun Control Debate. Buffalo, N.Y.: Prometheus Books.

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Gale Document Number: GALE|CX3425001157