Ari Ezra Waldman | Guns | Law - Gay, LGBT | News

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


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.


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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  1. I'm sort of confused what this has to do with gay law.

    Posted by: Me | Dec 19, 2012 4:24:16 PM

  2. Fact is its my right to have a gun deal with it commies. And btw one does not need a gun to kill look at OKC 168 dead without a single bullet fired.

    Posted by: Lee | Dec 19, 2012 5:15:47 PM

  3. DCinsider go to Europe you traitor the SCOTUS ruled in heller v dc that we did have a right to use guns for self defense, and one of the plaintiffs btw was a gay man whose life was saved thanks to his fire arm.

    Posted by: Lee | Dec 19, 2012 5:19:18 PM

  4. The Bill of Rights is forever being dumped on because it helps prevent mob rule, which is always very popular. Europeans just can't understand why Americans aren't more like them. The problem is that various difference in the way US culture and govt. work makes various European 'solutions' unworkable here. There are also much larger problems to solve, such as ending the various "wars" that are going nowhere, like the war on drugs, which kills dozens of people a day in Mexico and fills up our prisons to the tune of $75K per year per prisoner. Also, public education fails a lot of kids here in the US. So, even if we ban guns, these other issues will remain and for most people nothing will have gotten better.

    Posted by: anon | Dec 19, 2012 5:24:52 PM

  5. It seems to me that those SCOTUS justices who are so enamored of "original intent" weren't such bloody hypocrites, they would be interpreting the 2nd Amendment as making possession of flintlock pistols, muskets, blunderbusses, and harquebusses legal, and all other guns illegal.

    Posted by: TomTallis | Dec 19, 2012 5:44:02 PM

  6. @ratbastard: there was an item in this morning's paper indicating that Lanza's mom was trying to have him committed for his own good and he was very angry about it. There's some speculation that this was what pushed him over the edge.

    The newspaper article stated that "his mom wanted him thrown in the psych ward," which shows one part of the problem - our culture stigmatizes mental illness, which makes it harder for people to get treated. The bias is even evident in the reporter's choice of words - did you ever hear of someone being thrown into the cancer ward?

    There's a similar effect from the stigmatization of STDs - it makes it less likely for people to get tested and (if necessary) treated. It contributes to the rate at which HIV is spread, so at least one contributing factor appears to be relevant to LBGT-related discussions.

    Posted by: Bill | Dec 19, 2012 5:56:51 PM

  7. There are no absolute rights? All rights are just part of a social bargain? Well, then what was wrong with sodomy laws? This writer seems to think that the social bargain (meaning the political process) can pretty much do what it wants. He has a very low view of rights.

    Posted by: James Peron | Dec 19, 2012 10:28:24 PM

  8. Curiously, the handguns available when the U.S. constitution was written were capable of firing a bullet, at which point gunpowder would have to be added, followed by another bullet. A modern handgun or repeating rifle would have seemed like a weapon of mass destruction relative to what they had at the time.

    It might be worth noting that there is no right to have a handgun specifically in the U.S. Constitution, and Article I, Section 8.16 gives Congress the authority "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

    One might claim that the modern equivalent of the militia is the national guard and state or local police. One might suspect that the purpose of the 2nd Amendment was to prevent the federal government from banning all weapons at a state level, and was simply a clarification of what existed in Article I: the individual states needed some sort of armed forces under state control because at the time, it would take a number of weeks to send a request to Washington and get a reply. It's not like they could dial 911 to get help.

    Can we satisfy our current Supreme Court by going for "original intent" and letting people have 18th century handguns? That would substantially reduce the problem given the number of shots you can get off per minute with one of those.

    Posted by: Bill | Dec 20, 2012 2:40:29 PM

  9. People have said you cannot define what an assault weapon is. I disagree. A bolt-action rifle can be repeatedly fired about every 2 seconds (operate the bolt mechanism, acquire the target, squeeze the trigger); 30 rounds per minute. I would define any long gun capable of being fired faster than 30 rounds per minute as an assault weapon regardless of the method of chambering and ejecting rounds. I would limit magazines to 10 rounds before reloading. Handguns would be allowed to fire faster, but would also be limited to 10 rounds.

    Posted by: rik | Dec 20, 2012 5:12:00 PM

  10. The Second Amendment must be repealed.

    Posted by: David Ehrenstein | Dec 22, 2012 6:50:38 PM

  11. the founders made mistakes! correcting the mistake of permitting slavery cost 600,000 lives. how many lives will be lost before we correct the mistake of permitting the right to bear arms?

    Posted by: lyoninthesun | Dec 25, 2012 10:21:18 AM

  12. I hope that you understand one day the serious consequences of what you ask. You have no idea what can happen when the people being governed are disarmed. Your misguided attempt to explain why the 2nd amendment shouldn't exist, is incredibly short sighted. The purpose of the 2nd amendment is NOT for hunting, NOT for personal protection, but for protection against a tyrannical government. Even Adolf Hitler made a speech stating that they MUST disarm the population if he was to succeed in expanding his Empire, aka dictatorship and look what happened there. It is inevitable, a subdued and disarmed population is one who can't stop tyranny. It's been proven time and time again. Personally, I wouldn't be against background checks for all transactions but we CANNOT limit the ability of law abiding citizens to possess firearms. From a personal defense point of view, nearly every country or city for that matter that has enacted strict gun control that took the guns from the hands of law abiding citizens have seen an increase in murders with firearms and robberies because then only the criminals would possess them. I pray we never know the true impact of losing the 2nd amendment but if it did happen would understand what it truly means to have the government run your life.

    Posted by: Rob | Jan 2, 2013 1:11:29 PM

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