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]