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The Second Amendment Exists, Let's Deal With It: Legal Lessons from Newtown

BY ARI EZRA WALDMAN

Those of us who believe in reasonable limitations on an individual's ability to get his or her hands on weapons of war have to accept the fact that the Second Amendment exists. The Framers thought it was so important that they put it right up there at the top, second only to some of the most basic freedoms in our republic: speech, press, religion, and association. But, there is nothing in the Second Amendment inconsistent with reasonable restrictions on guns.

IconNo rights are absolute, despite what some of our distinguished judges think. Rights are just one part of a grand social bargain that includes attendant personal responsibilities, obligations to others, greater societal goals, and expectations of stability and freedom. But that doesn't mean that we can ignore the constitutional manifestation of a long-standing tradition for some segments of the American population. The Second Amendment has to be reckoned with, and not with emotion or the understandable shock, horror, and disbelief we feel after tragedies like Newtown.

The Second Amendment states as follows:

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.

MilitiaLet's set aside the ongoing debate about the commas for now. The governing interpretation of that language considers the first clause -- "A well regulated militia" -- prefatory or introductory. It doesn't provide context. Nor does it limit the third clause -- "the right of the people to keep and bear arms." It merely gives us a purpose for protecting the right to bear arms. And, because militias consisted of armed citizens, because the British had made a point of trying to disarm the American colonists, and because the Anti-Federalists were concerned that the new central government was going to do the same, the notion of a "militia" was entirely bound up with everyday individuals having guns. The second clause -- "being necessary to the security of a free State" -- modifies the first. It explains the explanation. So, given that, let's rewrite this confusing provision into something we can understand:

Because we think citizens having access to arms is essential for democracy and security, the people's right to bear arms will not be infringed.

Even if we accept that this is best interpretation of the language and history of the Second Amendment (I think it's barely north of plausible), this reading does not require absolutism. It doesn't ban all restrictions on guns. 

Let's discuss what the Second Amendment actually says. Then we can try to prevent the next Newtown.

CONTINUED, AFTER THE JUMP...

The Constitutional Question

The question is whether this dependent clause is simply prefatory -- like saying, "Hey, I'm about to tell you something..." -- or definitionally important -- like saying, "Only when x=5+9 is the following equation true...".

A recent Supreme Court decision striking down a handgun ban stated that the language was merely prefatory, that it did not limit the right to bear arms, and that because many Americans accept the use of handguns for self-defense purposes, a total ban on such commonly used arms violated the Second Amendment.

I disagree with this reasoning for several reasons.

First, arguing that the language is really prefatory and does nothing more than state a general purpose of the following clause requires us to ignore the long standing interpretive rule that there are no throwaway words in the Constitution.

Second, even if the language is prefatory, that does not speak to the arguable contingent historic nature of the right to bear arms. Guns used to play an important role in protecting American democracy, but they are more than likely playing a different role in American today than in the 1780s.

Third, prefatory language still provides context to the language that follows and, therefore, explains the nature of the right to bear arms. 

The Policy Question

For the moment, though, we have to accept the prefatory status of the first clauses. Even then, there are several avenues open to those who wish to reinstate some reasonable regulations on guns. The Supreme Court cabined its grant of a general right to bear arms as against a total ban on handguns. Handguns, unlike assault weapons, are among those guns that the Court found were common in America and among those guns many people accepted as helpful for self-defense. The same -- commonality and generally accepted for self-defense -- cannot be said for assault weapons. Nor can it be said for any weapon that allows rapid fire, like the weapon of war used in Newtown and previously subject to an assault weapons ban.

There is also nothing in the Second Amendment that makes sense out of the "more guns are the answer" argument. Just because there is a right to something doesn't mean that the right is necessarily enjoyed responsibly or should be invoked commonly in civil society. All rights have attendant responsibilities and limits. And, just because the Framers of the Constitution thought that generally available guns would make society more free or more stable, does not mean that is necessarily true.

In fact, the exact opposite is true. An armed society is not a free society. It is one that is supposed to discourage bad behavior not by creating good citizens, but by putting the fear of death into everyone around. An armed society takes away the government's monopoly on punishment and elevates fear to a governing principle of stability and order. Perhaps Machiavelli would be proud, but it would shroud modern American democracy under a dark cloud of suspicion, conformity, and hostility.

What Can we Do?

We need leadership, and leadership is slowly (too slowly and too late) being provided. Senators Dianne Feinstein and Chuck Schumer are introducing assault weapon bans and other gun regulation measures once the next Congress convenes in January. President Obama is slowly coming around to regulation, but his focus is elsewhere at the moment. Mayor Mike Bloomberg is using his considerably large wallet, loud bully pulpit, and lack of anything to lose to advocate the step-by-step regulatory method to eliminating gun violence. Together, they want to...

- Reinstate the assault weapons ban that expired in 2004

- Limit the sale of large ammunition clips to make sure that the guns that are available are appropriate for hunting, not firing 20 rounds in 5 seconds

- Close the gun show loophole and require background checks for all gun purchases, not just those that happen at a brick-and-mortar gun store

These are first steps and they all require leadership. President Obama may be in the best position to help stop the next mass shooting tragedy. Let us hope that the impossibly awful Newtown massacre galvanizes the political classes into action.

***

Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

 

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Comments

  1. Let me preface this with that I am fully in support with strong gun control laws, including banning assault rifles and implementing a stricter screening process for mental health, previous criminal activity, etc. It's just common sense.

    That being said, why is it that gun control is leading the debate post-Newton, and not the greater issue: mental health? It seems like the question of "what is being used to kill people?", while important, shouldn't take priority over asking "why are people committing these mass murders?" Gun control absolutely needs to be a part of this debate, but the ultimate prevention tool - screening, studying, treating and talking about mental illness and other factors that lead to violent behavior - should be in the forefront, IMO.

    Posted by: J | Dec 19, 2012 12:22:03 PM


  2. To anyone who understands firearms, the assault weapons ban was almost completely meaningless. The biggest change that manufacturers made was to take bayonet lugs of the rifle. That made it a non-assault weapon. We come to the problem of defining an assault weapon. Unfortunately, it always comes down to semantics. There's no realistic way of banning assault weapons, in the popular meaning of the term.

    I'm a gun enthusiast, and I'm ok with expanding the background check requirement. One other suggestion floated out there was better coordination between federal agencies. For instance, if you receive an SS check for a mental disability, you should be denied. That was one of the lessons learned from the Virginia killings, but little was done about it.

    I agree with one of the posters above. Little that has been proposed would have prevented this from happening. We need to do a better job with mental health programs.

    There are 300,000,000 guns in the US, and one of them was used to kill people in that school. 299,999,999 were not. It's a staggeringly low percentage. We must live with that reality of deal with the underlying issues...

    Posted by: joe | Dec 19, 2012 12:30:20 PM


  3. Access to guns is the problem. We can never predict what person will "snap" next and carry out another mass slaying. In the meantime, the whole nation is living in fear. Even with proper registration, gun "enthusiasts" cannot guarantee that their firearms will not fall into the wrong hands as we saw in Newtown. The Second Amendment will be repealed some day. The USA cannot survive forever with an ever-increasing flood of guns, and it will be forced to change - eventually. The "mental health" meme is just another tactic being pursued by the Right to obscure the real problem - don't fall for it.

    Posted by: niles | Dec 19, 2012 12:31:37 PM


  4. The problem is that the courts have already found that assault rifles are constitutionally protected, even when the sale is to a person who is -as-yet-undiagnosed-- batshit crazy!

    If having the second amendment means that Americans must be made to suffer the periodic massacre of American school children, then our nation's course is clear: THE SECOND AMENDMENT MUST BE REPEALED. And if we as a nation decide that some guns for hunting are useful, we need to replace the old 2nd Amendment with a new amendment that spells out exactly what weapons citizens may any may not possess.

    Posted by: Dan Cobb | Dec 19, 2012 12:34:39 PM


  5. It should not be interpreted as "the right of persons to bear arms".
    The right is in the people as a collective.......and is given expression in the Armed Forces maintained by the people.

    But it's good to hear you mention the social contract, Ari, ....we all subscribe to the contract of living and working together.
    What bothers me is my right to be free from guns and not to be intimidated by the presence of 300 million guns in the hands of individuals of very little education and divers degrees on human empathy and questionable sanity........my right of freedom from weapons and my right to live in a non-militia society is not being vindicated.
    Where are the great SCOTUS Judgments vindicating my right to live free, without my neighbours bristling with weapons ?

    Posted by: JackFknTwist | Dec 19, 2012 12:39:25 PM


  6. I have no doubt that had the massacre taken place in the Houses of the Legislature of the USA then the Amendment would be immediately put up for repeal.

    Posted by: JackFknTwist | Dec 19, 2012 12:41:13 PM


  7. THE PERFECT SOLUTION: Those that buy guns, when signing the paperwork will also sign for a 6 year service in "the Militia". Any one caught with a gun, doing a crime with a gun, or with an illegally obtained gun, will serve 12 years in "The Militia".

    Posted by: Sargon Bighorn | Dec 19, 2012 12:41:38 PM


  8. Niles, I'm not on "the Right" and I've been saying to my friends what J said in the first post: there is a much larger issue here than merely gun control, and merely controlling who has a gun, and what kind, will not stop the now-routine mass murders in our society. The causes of that behavior need to be as thoroughly analyzed and discussed as any presidential election, and laws need to be put in place to restrain or prevent the violently inclined from committing those crimes. It's not a right-left issue: it's common sense.

    Posted by: Russ | Dec 19, 2012 12:50:51 PM


  9. * Unrelated :

    That news that Robert H.Bork has died is the best i've heard all day. Another old fascist has left the building.

    Posted by: JackFknTwist | Dec 19, 2012 12:52:15 PM


  10. As European what you need is not only to to put in place a strict gun control, you need a universal medical coverage to take care of all persons mentally ill.

    Posted by: lukebrux | Dec 19, 2012 1:02:08 PM


  11. He said the unsayable. He's absolutely correct. We can sit here and wish upon a star that we were more like [insert foreign country here], but the reality is that that country probably doesn't have a constitutional right to be armed; the 2nd Amendment is strong, in English and direct. It comes before the right to be silent, due process, a speedy trial by jury, and cruel and unusual punishment. It's important.

    What we need to focus on is two things: using the constitutional tools we have, such as perhaps the right to tax, to discourage gun use. Or we could execute the best possible form of gun control: stop giving people reasons and avenues to be violent, i.e. reducing gang membership and violence, buy-backs, reducing poverty, increasing access to mental health services and putting firearm permit applicants through a pretty rigorous background check.

    Easy peezy.

    Posted by: Jake Orlando | Dec 19, 2012 1:12:39 PM


  12. The problem is there is no such as an 'assault' weapon; it's a scary sounding made up term. When people use it, they're really referring to military grade automatic weapons, rifles and carbines. These are illegal pretty much everywhere to own, and where some locals allow ownership of automatic firearms, it requires special licenses, etc.,VERY FEW people legally own automatic weapons in the U.S.

    The bushmaster Lanza used is really just a semi-auto hunting rifle and target shooter. It may look scary, but it's not really different from a traditional looking hunting rifle.

    Anti-firearms advocates, prosecutors and police throw out terms like semi-auto, high powered, assault, etc., because they sound scary to the average person who is completely ignorant about firearms.

    And I fully agree with banning entirely automatic weapons, high capacity clips, and many types of ammo. And certainly believe in reliable and accurate background checks on those who wish to legally own firearms. I believe illegally possessing a firearm and especially using it to commit a crime should be severely punished in and of itself, and not plea bargained down. But to have the federal government do these things on nation wide basis will be an up hill struggle with the states who wish to exert their constitutional rights within the union and their own state constitutions.

    Posted by: ratbastard | Dec 19, 2012 1:15:21 PM


  13. While I typically love Ari's posts, I think this article takes a bizarre twist. It starts off with an excellent explanation of the 2nd amendment context, and makes a nice paraphrasation:

    "Because we think citizens having access to arms is essential for democracy and security, the people's right to bear arms will not be infringed."

    If that context is true, then how do we come up with an understanding that the government should limit gun sales? If the purpose of the 2nd amendment is to "preserve freedom" against a tyrannical state (whether the British Empire or a strong Federal government), doesn't a contemporary interpretation suggest that private individuals should be able to obtain drones and other weapons that we can use to fight off the British or the Federal Government?

    I'm not trying to sound like a nutter conspiracy theorist, but the purpose of the 2nd amendment isn't to promote hunting or even household self defense - it's to preserve freedom against invasion by the Native Americans, the British, and a tyrannical Federal government. Therefore, we should have drones and military grade weapons, no?

    Posted by: jlavoy | Dec 19, 2012 1:16:18 PM


  14. @ ICEBLOO :

    Why the excitement ?
    He acted for whatever side instructed him.
    That's the same with all lawyers worldwide.
    It is the second oldest profession after all !

    But i do feel bad about that poor kid, Tyler Clementi.......that was very tragic and deeply moving. But I'm sure the lawyer ,Ari, has the same feelings......and everyone is entitled to be defended.

    Posted by: JackFknTwist | Dec 19, 2012 1:19:34 PM


  15. There is a legit problem with the interstate trafficking of firearms from states where they're easily available to states where they aren't, and in turn contributing to violent gun related crime. The federal government I assume does have the right to control this issue and exert it's authority.

    Posted by: ratbastard | Dec 19, 2012 1:19:59 PM


  16. For me, this argument about the first phrase of the amendment being prefatory is key. I've always interpreted it as being the method by which those in society can bear arms.
    As I have flippantly said, "Two assholes in an RV hunting possums in Arkansas while drinking Coors Light is NOT a well regulated militia."
    To extend that, one middle-aged woman with an assault rifle in a middle-class suburban Connecticut town also does not constitute a well regulated militia.
    Yes, Adam Lanza was mentally disturbed, but his access to those weapons are indeed the biggest contributing factor to the slaughter of 26 human beings.

    Posted by: Brendan | Dec 19, 2012 1:21:52 PM


  17. @ ICEBLOO

    Ari Ezra Waldman's name is not on either Tyler Clementi or Dharun Ravi's wikipedia pages. I searched. What was the reason you cited Tyler's page?

    I cannot remember the posts that Ari made re: the trial, but he has a tendency to approach the law unemotionally, and as it is written. This is how the law is intended to be read. It is possible to think that something is terribly unfortunate and horrific while maintaining that the law says something contrary.

    It is like how people hate Westboro Baptist Church and wish they could be prosecuted but really, the follow 1st Amendment law and precedent to "the T", so they're completely legal.

    Posted by: jlavoy | Dec 19, 2012 1:22:05 PM


  18. Even with the First Amendment, there are restrictions on speech. There's no reason why the same approach doesn't apply to the Second Amendment - i.e., it still allows restrictions on gun.

    For example, despite the First Amendment, the government can ban "fighting words" that present an imminent threat to peace and order; the government can ban "obscenity" and, at least on radio and TV during certain hours, it can ban speech that is considered "indecent"; the government can ban (or allow enormous damages to be awarded for) "defamatory" speech (libel, slander, etc); in some situations, speech that invades the "right of privacy" can be punished. And so on.

    All of this is more than enough to find ways to ban certain types of guns and certain types of ammunition, and also to ban ANY types of guns in certain locations and/or at certain times of day/night. Ultimately the Supreme Court will say which of these restrictions is reasonable under the Second Amendment, but the fact is that there is plenty of precedent to impose many restrictions on guns / ammunition. The problem is that the public isn't agitated and organized enough to pressure their Congress Members to do that, and the Congress Members don't have the guts to do it on their own.

    Posted by: MiddleoftheRoader | Dec 19, 2012 1:54:57 PM


  19. I tire of hearing this is primarily an issue of mental health, as if we'll suddenly now be able to miraculously have enough resources and sensibility to set up a great system in which the Adam Lanzas of the world are identified, hospitalized, or treated appropriately to become functional citizens. Give me a break. Mental illness is hard to identify, and a misdiagnosis or improper treatment can often lead to even worse outcomes in otherwise functional people. Think about how well our prison system works as rehab, and you'll get a good idea of how well the mental health system worked in the past at sifting between those who could be treated vs. institutionalized. The unintended consequences of approaching this as a mental health issue first are pretty high.

    The question that needs to be asked is *why* anyone should have the kind of firepower that Adam Lanza had access to. Not just the chronically mentally ill, but anyone. Because people have psychotic breaks with no history, or take controlled or illegal substances that lead them to act crazy. It's simply not a problem that you can deal with by just writing better policy. You can't catch those incidents with any behavioral net, however wide it's cast.

    But, arm someone who is crazy or who "goes crazy" with a revolver or knife, and you have a much smaller tragedy, or none at all. You go from killings to mass killings when you increase the firepower. The sad part is that we *can* write the laws needed to make this happen. Our friggin tax code takes up entire bookshelves but we can't write the laws necessary to get this kind of weaponry out of civilian hands?

    Posted by: Stefan | Dec 19, 2012 2:05:10 PM


  20. the more armed a country is, the more its culture has failed.

    Posted by: LittleKiwi | Dec 19, 2012 2:10:01 PM


  21. As a point of Constitutional interpretation I feel that it is equally valid to conclude that the amendment restricts the use of weapons by the citizenry to only members of a militia that is "well regulated" by the state.

    Thus, the individual may have the right to keep and bear arms, but only as part of a well regulated militia, that is a citizen force. We have no modern day well regulated militia, thus there is no constitutional basis for an individual citizens to keep and bear arms.

    This interpretation is a valid one, though not an interpretation accepted by current Constitutional scholars or judges, but it is an interpretation that deserves to be pushed by the progressive community. We need a single Supreme Court judge to file a dissent outlining the correct interpretation of the Second Amendment.

    Or, we need a Constitutional Amendment that would permit the banning of weapons owned by individuals.

    What we do know is that the status quo, even with some additional gun control legislation, is out of control. It cannot be cured by some type of Marshall PLan for mental health, and it cannot be cured by additional gun control legislation. It can only be cured by an outright ban on the possession of firearms. Until we see that, all the rest of this is just BS.

    Posted by: dcinsider | Dec 19, 2012 3:02:49 PM


  22. JJ - why is the "greater issue" of mental health not being addressed? Because a mentally ill person without a gun can't do the harm that one with a gun can do. Take the guns away first.

    Posted by: TC | Dec 19, 2012 3:10:41 PM


  23. @DCINSIDER

    To play Devil's Advocate, "well regulated" here could mean something like "well oiled (machine)", not necessarily regulated in the colloquial sense. In an apparent sense, the 2nd amendment gives the citizenry the right to form a militia.

    My point is that we should be considering what the 2nd amendment actually means. So many trivialize guns for hunting purposes or personal self defense. Neither of these things are actually in the 2nd amendment. The 2nd amendment creates the conditions so that the citizenry - at the the time, white landowners - could organize and overthrow whatever they perceive to be tyranny (Natives, British, Federal Government, etc.) A strict interpretation of the 2nd amendment, therefore, could allow for increased firepower on the part of the citizenry, as the Federal and global militaries have obtained increasingly more sophisticated weapons.

    Posted by: jlavoy | Dec 19, 2012 3:15:58 PM


  24. I also want to comment here about the mental health debate that is going on. Some are saying that "No mental health can never been affected, we might as well increase gun regulations." I'm not opposed to gun regulations, but I really am not confident that will solve any problems. For example, Adam's guns were obtained legally - they were his mothers. Logically, she'd pass a background check, etc.

    Instead, let us think about how the TV shows that we obsess over (like The Real Housewives and Honey Boo Boo and Jersey Shore) promote the idea that irrational, reactionary emotions are an appropriate response to everyday issues. Do we not see this playing out among so many people, perhaps influenced by sensational TV shows? Also, our movies glorify redemptive violence. Hell, this is the entire premise of the military's recruitment campaigns! Do these not cause people to act and think certain way?

    Mental health is not just one's ability to seek out a counselor when needed. It is also the WORLD VIEW - in America's case, a militaristic worldview - that influences how we go about our decision making in daily lives.

    Posted by: jlavoy | Dec 19, 2012 3:20:58 PM


  25. Actually, mental health really is number one,here. Adam Lanza was seriously mentally ill. His mom [RIP] thought [wrongly] that she could 'reach' him, rather than give him the extensive professional help he required. She was wrong, and died because of it, as did 25 other people including 20 young children.

    And if she had tried to 'commit' him, it would have been an arduous task. I'm not saying it should be easy for an adult or child to be committed to a psychiatric facility, but the way it works now, with so-called community centered outpatient treatment is quite flawed and people [both the mentally ill who are victims themselves more often than victimizer] have and will continue to unnecessarily be seriously hurt or killed.

    And there's the other serious issue and question of why didn't Adam's family, especially his father, do more? He knew his own son was seriously mentally ill and by the sounds of it basically washed his hands of him and gave him over to his ex-wife, throwing $ her way to take care of the 'problem'. A dysfunctional family if ever there was one, and not un-common.

    Of course, I fully understand 'gun control' is the main talking point and integral part of the narrative. The other stuff I mentioned isn't, so won't be discussed in the same fashion as gun control.

    Finally, this is shocking to some, but people do have a right to use firearms to hunt, target practice [I know some find it strange, but many people actually enjoy target practicing and just collecting firearms. They are not evil people and by far most are law abiding.

    I would say when politicians, celebrities, CEOs, pro athletes, etc., give up their firearms and body guards, THEN they can reasonably ask the general population to do so. The VIPs have armed guards and carry firearms themselves because they know police aren't enough to protect. Are their lives worth more than the average persons? When police, the courts, politicians, etc., can get our violent crime problem, especially in our urban areas [a problem that's been going full steam for 40 plus years] get the violent young men who roam the streets looking for their next victim,gangs, and so-on locked up and disarmed, THEN we can talk about gun control. But I can guarantee you if that ever happened, there wouldn't be any gun problem.

    Posted by: ratbastard | Dec 19, 2012 4:06:26 PM


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