aTypical Joe: a gay New Yorker living in the rural South

Tuesday, November 27, 2007

Sunstein on the 2nd Amendment

A few weeks ago I listened to a podcast of a Cass Sunstein lecture, “The Second Amendment: The Constitution’s Most Mysterious Right.” That lecture appears this week as a piece in The New Republic.

In it he examines the textualist and originalist positions and concludes that the Second Amendment probably does not create an individual right, because it was designed to protect state militias. But, in the end, he concludes:

Some people are drawn to judicial “minimalism,” and want to decide cases as narrowly as possible. (Chief Justice Roberts and Justices Alito, Breyer, and Ginsburg have shown minimalist tendencies.) Could we imagine Second Amendment minimalism? Even if it is agreed that the Second Amendment should be construed to protect individual rights, it does not follow that all, most, or many restrictions on gun ownership must be struck down. People have an individual right to free speech, but that right is not absolute. Courts allow governments to regulate obscenity, libel, bribery, criminal conspiracy, false commercial advertising, child pornography, and criminal solicitation. Even the minority report in the Pennsylvania ratification convention, much emphasized by advocates for gun rights, says that the right to bear arms can be overcome in the face of “real danger of public injury.”

It would not be difficult for judges to conclude that a “real danger of public injury” exists when those with criminal records seek to buy handguns, or when people get sawed-off shotguns, or when they do not agree to keep their guns in secure places at home. Judges who embrace minimalism would prefer to resolve Second Amendment cases in the following way: “We need not answer the disputed question of whether the Second Amendment confers individual rights at all. Nor need we specify the precise nature of any individual rights that might be conferred by that amendment. Even if the Second Amendment does confer individual rights, it is not violated by the restriction at hand. That restriction preserves the right to possess guns; it merely imposes a reasonable condition on the enjoyment of that right.”

An approach of this kind, now followed by many state courts under state constitutions that protect gun rights, would leave open the possibility that courts would invalidate the most draconian or severe restrictions on gun ownership, while also allowing the democratic process considerable room to maneuver. To be sure, some gun-control laws, including the law in the District of Columbia, are quite severe, and make a minimalist approach hard to implement. But even when confronting such laws, courts can rule in a way that leaves open many of the hardest questions.

Many people would like to reject a minimalist approach on the ground that...the legal materials, including the original understanding and the broader tradition, do not recognize an individual right at all. But whatever the founding generation may have thought, the Second Amendment has become a shorthand, or a rallying cry, for a deeply felt commitment on the part of tens of millions of Americans. There would be not merely prudence, but also a kind of charity and respect, in judicial decisions that uphold reasonable restrictions without rejecting that commitment, and without purporting to untangle the deepest mysteries about the meaning of the Constitution’s most mysterious provision.

I agree with that conclusion and recommend reading the whole piece.