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Guns, rights and the U.S. Constitution

On March 18 the Supreme Court will hear arguments about the meaning of one of the Constitution’s most contentious provisions, which reads:

“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.”

In the District of Columbia v. Heller case, the Supreme Court will confront the question of whether Washington’s strict gun laws violate the right “to keep and bear arms” protected by the Second Amendment. At issue in Heller are city ordinances that provide a near total ban on handguns purchased after 1976, and that criminalize the possession of functional rifles and shotguns — even in one’s own home. While the outcome of Heller will no doubt affect the legal landscape of gun rights in this country, the Heller decision will also have broader ramifications. In fact, the direction that the Heller opinion takes will serve as a prime indicator of the overall health of our Constitution.

For those unfamiliar with the state of Second Amendment debate, Heller stands at the crossroads of a clash of perspectives about the underlying meaning of the Second Amendment itself. These perspectives fall largely into two camps:

Individual vs. collective rights
The “individual rights” perspective holds that the Second Amendment guarantees the right to keep and bear arms to individual citizens, much as the First Amendment guarantees the right of free speech to individuals. The competing “collective rights” view holds that the Second Amendment simply represents a right of states to organize armed militias. From this perspective, the “keep and bear” language refers only to collective purposes related to the maintenance of “well regulated” militias.”

Each of these interpretations holds its own consequences for gun ownership in America, and only one will ultimately prevail at the Supreme Court. A victory for the individual-rights perspective would likely invalidate District of Columbia’s gun laws, and would also make it more difficult to pass gun-control legislation at a federal level, since such laws would potentially infringe upon a constitutionally protected right. A victory for the “collective rights” theory would have just the opposite effect; it could embolden Congress to pass stricter gun regulations, without fear of meaningful court review.

Despite the split in legal opinion over the meaning of the Second Amendment, the debate over what this section of the Constitution means is easily solved if one looks to its original principles. The case for an individual Second Amendment right is strong, starting with the basic grammatical structure of the amendment itself, which places “the people” within the operative clause of that sentence:

” … the right of the people to keep and bear arms shall not be infringed.”

The Bill of Rights is replete with other references to “the people,” which have always been understood to refer to individual rights, rather than to collective or “states’ rights.” Tellingly, the authors of the Bill of Rights chose to differentiate between “the people” and “the states” very clearly in the 10th Amendment, when they noted that:

“The powers not delegated to the United States by the Constitution, nor prohibited to it by the states, are reserved to the states respectively, or to the people.”

Gun ownership as fundamental right
Finally, the context in which the Second Amendment was written illuminates and clarifies its true purpose. The most influential members of the founding generation were explicit in their support for individual firearms ownership, which they viewed as a fundamental right. For instance, Thomas Jefferson said of the American people that “… it is their right and their duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press.”

Despite this compelling textual and historical evidence, federal appellate courts have seen fit to uphold the “collective rights” theory for the past several decades, at the expense of the clear purpose of the Second Amendment, not to mention the rights of private gun owners. The collective-rights theory has also been championed by many gun-control advocacy groups; it has aided them in achieving their political goals of instituting more restrictive firearms regulations.

This sort of activity — the willing reinterpretation of constitutional provisions to denude them of their basic meaning — has long been aimed at the Second Amendment. However, that amendment is not the only part of the Constitution to have suffered this fate. Vast areas of the document have been chiseled away by successive generations of politicians, attorneys and judges who have sought to interpret out politically inconvenient parts of the Constitution as they have pursued their disparate agendas. The arenas of law enforcement and national security provide us with some ready examples of how this has occurred — particularly in relation to Fourth Amendment protections.

Protection from unreasonable intrusion
The Constitution aims to protect Americans from unreasonable governmental searches through the Fourth Amendment, which reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fourth Amendment contemplates a close relationship between “reasonableness” in police searches and the use of search warrants in police investigations. Years of case law have held that these two concepts are closely linked, and that the warrant requirement is the rule, rather than the exception, in police searches. Under the Constitution, a judge must typically authorize search requests by police, and issue warrants based upon “probable cause” that evidence of criminal activity will be uncovered by a particular search. Warrants serve an important function; they provide a check on police authority and prevent baseless fishing expeditions or invasions of privacy. In the past, courts allowed some departures from the use of warrants, but these were generally limited to emergency circumstances — such as when officers witnessed an unfolding crime and had to enter a home in hot pursuit of a suspect. Recent years have seen a substantial broadening of “exigent circumstances” exceptions to the warrant requirement, which have served to devalue the warrant requirement itself. 

Within the past few decades, the Supreme Court has permitted police to set up random, warrantless sobriety checkpoints to search for drunk drivers, without requiring even a basic showing of probable cause. The high court has also held that similar random checkpoints are permissible for detecting illegal immigrants. In both of these cases, the court held that the mere purpose of these stops was enough to render them reasonable and constitutional, despite the Fourth Amendment’s stern language about warrants and probable cause requirements.

Similarly, courts have used the “war on drugs” as a rationale to further decouple the warrant requirement from overall reasonableness in police searches. Court decisions involving drug cases were responsible for broadening the exigent-circumstances doctrine to cover not only hot pursuit, but also the prevention of contraband destruction. Through a series of federal court opinions, police have been allowed to sidestep the warrant process if they believe that suspects might possibly try to destroy narcotics that could later be used as evidence. 

More recently, advocates of a hard-line approach to counterterrorism have argued for still more exceptions to the warrant requirement. These voices have insisted, for instance, that systems of broad-based, warrantless surveillance of international telephone calls with a domestic nexus comply with the Constitution because their purpose (protecting us from terrorism) is reasonable, and thus they should fall into the growing bin of exigent exceptions to the warrant requirement. Of course, if we followed this logic to its ragged end, it would essentially eliminate the need for warrants of any kind, for as long as the state asserted that its actions were in the service of national security (and were therefore “reasonable”), then warrants would not be necessary to trigger any of its search-and-seizure powers. Courts have yet to bite on this particular theory, but it has nonetheless been used by the White House and its allies to justify wiretapping activities that were expressly prohibited by U.S. law.

Too much creative interpretation

All of this legal tinkering has had the net effect of weakening large portions of the Constitution by allowing exceptions to swallow rules, and by rendering some provisions of the document nearly moot through creative interpretation. These sorts of legal games have been viewed as permissible by both sides of the political aisle, largely because liberals and conservatives have been extremely selective in their defense of the Constitution. Both sides have fought to preserve only those parts of the Constitution that they value, and have actively attacked those provisions that they dislike. Liberals have sought to weaken the Second Amendment and the property-rights protections of the Fifth Amendment, while conservatives have reliably assaulted the criminal-procedural protections of the Fourth, Fifth, and Sixth Amendments.

The American political process needs to move away from this kind of interpretive combat, or the end result will be the mutually assured destruction of the entire Constitution. Whatever our political persuasions might be, we would do well to view the Constitution as something made of whole cloth, rather than something that can be dismembered and reinterpreted for the sake of political expedience. 

If the Constitution says “X’, we cannot pretend that it says “Y” simply to accommodate our short-term goals.  Instead, we need to deal with the document as it is, and we need to craft our public policies and legal arguments in concert with its careful mandates.   This approach matters because, ultimately, we are the caretakers of the Constitution and not its end-users. We are obligated to preserve the document’s integrity, so that those who follow us can benefit from its guidance and protections. A Supreme Court ruling in Heller that upholds the original, individual-rights understanding of the Second Amendment would be one sign that the nation’s legal elite might be ready to take this obligation seriously.

Matt Ehling is a freelance television producer and documentary filmmaker based in St. Paul.


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Comments (7)

  1. Submitted by B Maginnis on 02/28/2008 - 12:50 pm.

    An excellent job, Matt.

    Should be required reading for ALL Minnesotans.

    This country was founded by armed citizens, and needs to remain protected by same.

    Would that the liberal ant-gun zealots realize that it is THEIR failed policies that make self defense and the assurance of the ability of an armed response a more vital neccessity than ever before.

  2. Submitted by John Olson on 02/28/2008 - 08:27 pm.

    One word: outstanding.

  3. Submitted by Fred Hundt on 02/29/2008 - 11:42 am.

    I’ve been following this Supreme Court case and Matt’s article is the most well-crafted discussion I’ve seen on the topic. Hopefully the Court will give a clear decision on the individual-rights aspect of the Second Amendment and we can all move forward from it.

  4. Submitted by Harry Rossman on 02/29/2008 - 11:48 am.

    The larger issue is all rights. As I see it, a right is that human action which is considered to be completely acceptable by society. In addition, in any direct conflict between law and a right, the right wins given no wrong-doing. Yes, I know that laws can be interpreted to infer or show some form of wrong-doing, however, I am referring to some direct action which is recognized as wrong-doing by society.

    Although keeping the right of self defense and the the means to do so goes back to the beginning of time, there are other rights which are also at risk. Freedom of speech, assembly or the right to be secure in your person papers and property without reasonable suspicion and accusation.

    The Patriot Act, McCain-Feingold Communications Act are two which come to mind. Both of these are based on the idea to preserve what is right and good. Both essentially destroy what is right and good by implementing the very tools which our constitution and society have deliberately rejected.

    Most especially in the heat of the moment, step back and consider carefully.

  5. Submitted by Dan Kitzmann on 02/28/2008 - 01:41 pm.

    This is far and away the most cogent, well-reasoned guest commentary I’ve ever read on this site. And I offer these kudos as one who is sympathetic to some measure of gun control, even though I believe qua the 2nd Amendment it is unconstitutional and thereby insidious. (I have a similar contradictory and conflicted mindset about abortion: I am moderately pro-choice, but I do not believe the Roe decision constitutional.)

    In any case, Matt’s essay here is truly excellent.

  6. Submitted by Shawn Christianson on 03/03/2008 - 12:20 am.

    This is an awful article. The concept that the constitution should be interpreted exactly how the founders wrote it is ludicrous. He says that we must stick to what the constitution specifically says and that we should “craft our public policies and legal arguments in concert with its careful mandates.” This is ridiculous because so much has changed that the founders could never have anticipated. The Constitution, although a brilliant document, was never meant to be in use this long, and they never could have foreseen some of the problems that we have today. I am not of the school of thought that we should craft an entirely new constitution, however we can not interpret it directly, there is too much that it was never meant to deal with. To do so would be foolish and wouldn’t provide any context for issues like abortion, wiretapping, e-mail searches, etc. because if you interpret this amendment this strictly you must do so with the rest of the document which leaves no room for the document to work in the way that has been keeping it alive for the last 200 plus years

  7. Submitted by Dan Kitzmann on 03/03/2008 - 09:55 am.

    Shawn’s dissent strikes me as a textbook straw-man argument, with a few red herrings included for good measure.

    To advocate that we “craft our public policies and legal arguments in concert with” the Constitution’s mandates is not necessarily to endorse so-called “strict constructionism,” a term whose meaning varies by user, but in constitutional jurisprudence usually connotes to certain conservatives what Biblical literalism is to religious fundamentalists. (In my opinion, such literalism was as absurd in 1789 as it is today, for one cannot interpret any text absent a larger context–viz. metadiscourse.)

    I read Matt’s argument about gun control as a careful analysis and weighing of individual versus group rights, qua the text and context of the Constitution, not as a mindless dance around the idol of strict constructionism.

    Shawn suggests that the Constitution “was never meant to be in use this long”. Really? How long was meant to be used?

    Shawn also says “we can not interpret it directly, there is too much that it was never meant to deal with.” Really? If the Constitution was not meant to deal with issues unforeseen at the time of its writing, on what basis can we decide which issues fall under its proper purview? And for those issues that do, how do we form the constitutional context within which to interpret them?

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