Does the Second Amendment Prevent Gun Control? Some Notes on the First Amendment, the Second Amendment and the War on Terror

JB

We are all shocked and saddened by the disturbing story of the massacre at Virginia Tech. One question we will face in the coming weeks is whether this massacre, and previous ones in our history-- including the Columbine massacre in April 1999-- should spur reforms concerning the ownership, use and possession of guns.

I believe that the Second Amendment protects both an individual and a collective right, and I also believe-- contrary to existing doctrine-- that it applies to the state governments as well as the federal government. But that is the beginning of the inquiry, not the end of it. Constitutional rights are subject to reasonable regulations. That is true of the First Amendment's guarantees of free speech and press, and it is no less true of the Second Amendment's guarantee that "the right of the people to keep and bear arms, shall not be infringed."

Although many think the First Amendment's textual guarantee seems absolute, in fact the key phrase is not "no law" but rather "abridging the freedom of speech." The Constitution does not define what abridgment is, nor, does it define the contours of "the freedom of speech." These have to be worked out over time, as well as the scope of permissible regulation consistent with that freedom.

The freedom to speak is limited by scores of content-neutral regulations that structure the time, place and manner of expression, and by content-based regulations that penalize defamation, fraud, incitement, conspiracy, obscenity, threat, harassment, and perjury. Many acts that occur through communication-- including contractual formation and contractual breach-- are treated as completely outside the guarantees of freedom of speech.

Nevertheless, the freedom of speech does protect some activities that cause significant harm to other people. Protecting freedom of speech imposes genuine costs on society; our hope is that its benefits-- in terms of freedom, dignity, and an open society-- outweigh those costs. As Justice Holmes said, the constitutional guarantee of free speech is an experiment, as all life is an experiment.

What we can say about the First Amendment we can also say about the Second. The Second Amendment does not prohibit reasonable regulations on the possession and use of arms; moreover, some possession and use of weapons falls completely outside of the constitutional guarantee. The most obvious example of the latter would be nuclear or biological weapons. At the same time, the Second Amendment does protect some activities that predictably cause significant harm to others. It also imposes significant costs on society, and we must hope that, properly construed, its benefits outweigh those costs.

This brings me to the issue of gun control. It is likely that a wide range of steps we could take today to limit the use and possession of dangerous weaponry are consistent with the Second Amendment, although there are probably some existing regulations that run afoul of that Amendment. Within that domain of permissible regulation, the Constitution is largely silent, and everything turns on questions of public policy. Moreover, even with respect to defining the enforceable boundaries of the Second Amendment right, practical consequences will inevitably play some role.

The Second Amendment has two central purposes: to act as a check on tyrannical governments (the classical republican theory) and to protect the right of self-defense where the state is unwilling or unable to defend the citizenry (the Reconstruction theory). These theories are consistent with a wide range of weapons regulations, although they do not permit wholesale confiscation of guns. We do not know whether any particular legislative solution would have prevented the slaughter at Virginia Tech, or whether such a solution is worth the additional costs it would impose. But we should not presume in advance that the Second Amendment rules out a solution that would work.

My final point concerns the War on Terror. Events like the Virginia Tech shootings put issues on the public agenda; they make things newly salient and create the appearance of emergency or at the very least a sense of an urgent need for governmental response. But we should not confuse salience either with importance or with good policy. The War on Terror is an excellent example: Following the 9-11 attacks, Congress rushed through a series of provisions-- some good and some bad-- without paying much attention to them, or in some cases, even reading them. (It also passed an authorization for the use of military force that was entirely too broad, but that's another story.) The Bush Administration used the crisis to institute a series of policy decisions that bordered on the authoritarian. What happened after 9/11 is exactly what one would expect. Our leaders panicked in a crisis, and cast about for proof that they were doing something. The sense of crisis opened the door for various forms of demagoguery and overreaching whose effects are still with us today. Ever since 9/11 our leaders have used the threat of terrorism and the need to wage a potentially endless War on Terror to justify shutting down important civil liberties protections. They have used fear and a sense of crisis to increase their power, abridge individual rights, and undermine important public values.

What happened at Virginia Tech could easily produce analogous political pressures to find solutions to what is also an ongoing danger to our country-- the widespread availability of firearms in the hands of criminals and terrorists, as well as emotionally disturbed persons who should not be trusted with weapons of any kind, much less guns. However, in this case, the familiar political valences would be reversed. Defenders of the Second Amendment-- many of whom are conservatives, will decry the rush to pass new gun controls, arguing that the fear of gun violence is overstated and insisting that granting more freedom to carry weapons will actually improve security. Meanwhile liberals-- many of whom have never thought the rights of gun owners very important-- will use the crisis generated by the Virginia Tech shootings as a justification for responding quickly and forcefully to what they see as an ongoing and urgent threat to American lives and national security. They might argue, to take a line from George W. Bush's arguments about the War on Terror, that if we don't work to win the battle against gun violence now, it will strike again when we least expect it.

Although there are abundant rhetorical similarities, I don't think that the issues arising from the Virginia Tech shootings and 9/11 are at all the same. What I do think they have in common is a tendency for overreaction: a tendency for salience-- and a sense of emergency-- to displace good public policy. If there is anything we should have learned from 9/11, it is that a sense of emergency can justify all sorts of bad decisions that we will come to regret later on.
Posted 2:20 PM by JB [link]