Balkinization: Originalism and Guns Redux

Originalism and Guns Redux

Mark Graber

The constitutionality of gun control regulations raises two questions about the original understanding or meaning of the Second Amendment. The first, amply surveyed in this blog and elsewhere, is whether the Second Amendment in 1791 protected an individual right independent of the right to be a member of the local militia (Saul Cornell’s wonderful book points out that the Second Amendment might both protect an individual right and be tied to militia service). The second, less discussed, is the standard of review. Justice Scalia, without surveying history all that much, jumped from the conclusion that the Second Amendment protected an individual right to the conclusion that gun control regulations would have to scrutinized carefully to pass constitutional muster. The history is more complicated.

Antebellum Americans did not regard laws aimed at safeguarding the public welfare, health, safety, or morals as violating fundamental rights. In their view, government officials did not limit liberty when they forbade actions thought to threaten harm to others or self. The emphasis was on legislative ends, not on legislative means. As Howard Gillman perceptively notes, pre-New Deal “jurisprudence . . . focused on the character of the legislation rather than the importance of the restricted liberty.” [Interested Readers should take a long look at Howard Gillman, Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence, 47 Pol. Res. Q. 623 (1994) and Gillman, THE CONSTITUTION BESIEGED. ] In short, rights at the time of the framing limited government purposes. Having a right was not an immunity against legislation in the general interest. If government was motivated by the desire to preserve public safety, and the regulation was plainly directed against the public safety, then government could restrict property rights, speech rights, and presumably gun rights. Whether the Alien and Sedition Acts were unconstitutional depended on whether they were good faith efforts to promote national security (a legitimate purpose) or bad faith means for silencing political opposition (an illegitimate purpose).

Heller is a stunningly easy case when considered in light of what rights meant in 1791. Whatever else may be said of the DC regulation, the restrictions on handguns were clearly an attempt to promote public safety and prevent crimes, both very legitimate public purposes in the eighteenth and nineteenth centuries. No issue of class legislation arises, because the prohibition applied across the board and, unlike wage and price laws, could not be considered a means for benefitting one class or citizens at the expense of another.

Rights have another meaning in 2008. To claim a right is to claim that your liberty cannot be restricted even if doing so has a clear relationship to the public welfare. Much contemporary civil rights law favored by both the left and right is rooted in contemporary understandings about the relationship between rights and the public welfare. I think that is entirely appropriate, that constitutional interpretation is the interpretation of a constitutional tradition. But I was under the impression that everyone in Heller was talking about the original meaning of constitutional provisions, not their Dworkian reinterpretation. The next time opponents of gun control regulation talk about original meanings, we should insist they discuss the original meaning of “right” as well as the original meaning of “to keep and bear arms.”

Posted 2:30 PM by Mark Graber [link]

Comments:

So perhaps the Constitution that Randy Barnett had claimed lost in his recent book was actually lost shortly after it and the Bill of Rights were adopted and that Scalia, with the aid of his gang of four, has now finally found it. Maybe a new book is in order:

The Original Constitution: Lost and Found after more than Two Hundred Years

# posted by

Shag from Brookline : 3:43 PM

nice.

# posted by

D. Ghirlandaio : 4:16 PM

I think you're on thin ice when you start arguing from a theory that would render the Alien and Sedition Acts constitutional. Assuming that you're right about how people saw rights back in 1791, it would seem odd if we used the contemporary, more expansive notion of rights when adjudicating every other right in the Bill of Rights, while insisting on the cramped 1791 view when it comes to the Second Amendment. I see your point that there's something a little hypocritical about ostensibly using all this originalist analysis to find out what the right is, while wildly departing from originalism when it comes to the level of scrutiny, but they certainly can't announce that when it came to rights the framers were basically for the equivalent of rational-basis review, and then only apply it in this context.

# posted by

Asher : 5:37 PM

Will someone please direct me to statistics showing number of
homeowners shooting invaders and number of homeowners
killed by invaders.

# posted by

Farris W : 8:05 PM

please direct me to statistics

Why do you think body counts are relevant? Were you heavily influenced by McNamara and Westmoreland in your youth? My cousin carried a gun all day long, every day for years, and never killed anyone. As a suburban police officer, he found just carrying the gun was a sufficient deterrent.

# posted by

former law student : 8:58 PM

"former law student'
How do you know the uniform
Wasn't the deterrent?

# posted by

Farris W : 9:20 PM

I suspect that we will find the body count
very low, perhaps zero.

# posted by

Farris W : 6:37 AM

The contention that Founding Era America had no problem ignoring the People's rights to achieve "legitimate public purposes" should seem a bit strange to anyone who followed the debates over the Bill of Rights.

The Anti-Federalists argued that a written Bill of Rights was necessary because the People could not rely upon the Government's good will in respecting the People's rights.

The Federalists tried to argue that a republican Government accountable by the People could be trusted to do just that.

I did not read any account of Founders arguing that the rights of the People should be properly ignored by the Government for "legitimate public purposes"

History has proven the Anti-Federalists correct in their distrust of the Government and thankfully prevailed in establishing the Bill of Rights.

# posted by

Bart DePalma : 10:07 AM

Ah, constitutional "rights" . . . which are wonderful for those of you living outside DC. The same constitution that prevents us (through our duly elected representatives) from making ourselves safe (as those reps see it, anyway) prevents us not only from having any vote in Congress -- where Supreme Court justices are confirmed -- but also leaves the residents and elected leaders of DC completely without (formal) redress in terms of the means of amending, or participating in the amendment of, the very constitution that requires that we live with guns and without the vote.

So, what is the constitution -- much (MUCH!) less the interpretation of that document by those long dead -- to us?

# posted by

Unknown : 8:04 PM

The contention that Founding Era America had no problem ignoring the People's rights to achieve "legitimate public purposes" should seem a bit strange to anyone who followed the debates over the Bill of Rights.

Bart,

Nobody said anything about "ignoring" rights, merely that there was a civic republican understanding of their place in 1791 vs. the liberal focus of today.

As Gillman argues in Preferred Freedoms, a more liberal approach is appropriate given the expansion of the regulatory state (itself a necessary response to industrialization).

I think you're correct to praise the anti-federalists for demanding a Bill of Rights, but remember that at the founding these amendments did not yet apply to the states where general police powers prevailed (see also The People's Welfare by William Novak).

Ultimately I think Graber's intent here is to demonstrate that Scalia doesn't adequately frame the evolving history of rights, and to undermine his originalist pose.

# posted by

von Nostrand : 4:11 PM