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.