By Tom Lamia
I recently attended my 55th law school reunion. I would not criticize you if you looked away at this point thinking, “Okay, Boomer, what else is there to read in this fine West Village newspaper?” Stay, dear reader; there might be something for you here if you suffer, as I do, from frustration over the politics of gun control.
At my law school reunion, a symposium was conducted on constitutional limits to gun control. These limits are in the Second Amendment to the U.S. Constitution. (Amendments 1 through 10, known as The Bill of Rights, were part of the Constitution when it was originally adopted in 1789.) The Second Amendment provides that “the right of the people to keep and bear Arms, shall not be infringed.” This statement is preceded in the text by an introductory clause: “A well regulated militia, being necessary to the security of a free State….” For 219 years the meaning of these words was assumed to be clear. Then came the decision of the U.S. Supreme Court in District of Columbia v. Heller, in which possession of a handgun in the home for personal protection was found to be a Second Amendment right guaranteed to every American.
There is now a partisan divide in our country over the limits of this right. Some think the Second Amendment right to guns is, like the First Amendment right to speech, essentially unlimited, and go about trumpeting their constitutional right to protection from regulation of any kind. Others see the right as, necessarily, limited by the need for public safety.
There are limits to freedom of speech, as Justice Oliver Wendell Holmes made clear in his opinion in Schenck v. U.S., noting that there is no protected right to shout “Fire!” in a crowded theater. At a minimum, we can assume that the Second Amendment right has such common-sense limitations. But, additionally, and to the point of how the current partisan divide might be bridged, the Heller decision itself notes important limitations.
Not having followed this issue closely (it did not seem an essential arrow in the quiver of a corporate lawyer like myself), I was surprised to learn that Justice Scalia, who wrote the majority opinion in Heller, based the decision primarily on the ancient right of the English people to firearms. That right long predates 1789 when our Constitution was adopted, and it is that right which the Second Amendment protects.
The gap of 219 years between the adoption of the Constitution and the Court’s Heller decision seems relevant to any fine-grain examination of the right, made especially so by the Court’s premise of an ancient right existing under common law. Advancements in armament technology and the further accretion of social antagonisms have raised the concern that unless there are unstated limitations on the right, the Court has taken the Second Amendment beyond its time and place, reaching an absurd result. That’s a valid concern, but Heller is not going to be overruled. To make progress, both the traditionalists and reformers must work within the Heller framework.
Partisans must also do so. Without political accommodation, the courts will determine the limits of the Second Amendment. That will take time and produce a patchwork of results governed by the fortuity—or not—of cases that come up for decision. Such an unmanaged progression would leave a lot to chance. A better path would be a political accommodation between pro- and anti-gun factions through the give and take of negotiation. For that to happen, something like a “model gun rights” statute is needed as a template. To initiate the process, a select committee would produce a draft bill to be circulated among experts and stakeholders. Comments and discussion would improve the product by identifying key differences, resolving some and setting others aside for further discussion. This would go on until a draft model bill is produced.
Today there are sizable differences in state gun control laws. A survey of existing laws allocated them into 67 types, of which those enacted in each state range from four (SD) to 60 (HI), with several surprises (5 KY, 6 NH, 59 IL, 26 LA, 25 TX). The regional pattern is not consistent (for example, 5 MS, 19 AL, 26 LA; and 56 MA, 6 NH, 15 VT, 21 ME). There is a glaring regional divide between urban (55 NY) and rural (5 WY, 6 ID), north (42 MN) and south (14 OK), rich (50 CA) and poor (5 MS), left (56 MA) and right (13 GA).
An accommodation of the cultural, political, economic and regional differences reflected in the state survey is possible, I believe. The Heller decision regarding the Second Amendment does not protect all guns, only those that might be found in the home and be suitable for use in a militia. These would be today’s equivalent of handguns, muskets and shotguns—rifles and pistols—but not automatic weapons, high-capacity magazines, or body-shredding ammunition. Gun enthusiasts would accept this distinction. They would also accept background checks, though not gun registration. A gun registry would facilitate gun seizures, and that is greatly feared, whether rational or not. Gun-safety interests can accommodate these views, if there is protection from the angry social misfit, which a truly comprehensive background check system could provide. Keeping guns out of the wrong hands and restricting the sale of weapons of mass murder is constitutionally possible.
All of my neighbors in Maine have and use guns. They don’t rob banks or terrorize social gatherings, but they do hunt and they collect and trade guns. They are understandably mystified about and fearful of laws that would take those activities away from them. They do understand the need for restrictions on automatic weapons and the need for background checks to identify the disturbed and the criminal.