Opinion: What the gun lobby gets wrong about the 2nd Amendment
The Supreme Court will hear a gun control case in December that could significantly limit the ability of state and local governments to regulate guns for public safety reasons.
The case involves a New York City regulation on transporting handguns that was repealed in July. Although that original rule is no longer in effect, for now the court has not determined the matter to be moot, so the case will move forward.
In this dispute and others, opposition to gun regulations is often grounded on the premise that once an individual interest is identified as a “fundamental” right, that interest prevails over all countervailing public concerns.
That premise is profoundly mistaken. And, importantly, it is inconsistent with the way that constitutional doctrine has developed with other fundamental rights, such as freedom of speech and freedom of religion. Second Amendment rights should be treated no more favorably, despite the political rhetoric of gun rights supporters who claim that any firearm regulation is an unconstitutional infringement on their rights.
Of course, a constitutional right does carry with it a strong presumption against government interference with that particular activity, even though the exercise of the right involves a societal cost. We protect freedom of religion, for example, even though we know that some religious practices — like pulling children out of school after the eighth grade — might be considered problematic or harmful.
But there is a critical difference between assigning a high value to a constitutional right when balancing it against social concerns, and arguing that the right necessarily overrides the public’s ability to regulate that activity in ways that may be needed to protect the community.
The doctrine surrounding freedom of speech is instructive. No one doubts that speech rights are taken seriously in America. Yet the right to free speech is not absolute and can be regulated in numerous circumstances. Courts subject government regulations that affect speech to different standards of review that balance the public’s interest against the individual’s liberty. Among factors considered are the kind of speech involved and the location and manner of the restriction.
For example, a ban on rallies on public streets in residential neighborhoods after 9 p.m. would likely be upheld even though it burdens speech, so long as the law did not discriminate based on the message rally speakers expressed.
So too with protections for personal privacy under the 4th Amendment, which prohibits unreasonable searches and seizures by the government. That amendment doesn’t bar all searches and seizures, but instead requires that such intrusions be “reasonable,” a concept that inherently involves some kind of balancing of interests. Hence, we all must endure airport security screening searches because they are a reasonable means to protect air travel safety.
The individual right to bear arms for self-defense, as announced by the Supreme Court in 2008, is likewise not unlimited. Even though the court in that case struck down a flat ban on possession of handguns that might be used for self-defense in people’s homes, it observed that states could — for historical and public-policy safety reasons — prohibit people with felony convictions or people with mental illness from possessing guns, demonstrating that the very scope of the 2nd Amendment’s protection takes account of countervailing public objectives. For instance, keep their firearms locked up if there are children living in the home, even though gun owners might prefer easier access to firearms for self-defense.
Or consider the contours of self-defense itself. A 2nd Amendment right to keep guns for self-defense does not eliminate the need for society to think about how guns should be responsibly employed, even in self-defense situations. If someone uses a gun purportedly for self-defense purposes and kills another person, the 2nd Amendment does not preclude an evaluation of whether the alleged threat was sufficient to justify the use of deadly force or whether the killing involved excessive force because reasonable non-lethal alternatives were available for the shooter to defend himself.
The national debate now has focused on proposed regulations such as background checks and assault weapons bans. Whether specific measures would be permissible under the Constitution depends on their particulars, but the big point is that particulars matter.
In evaluating gun control regulations, it’s legitimate to take into account the social harms and risks arising from individuals keeping, bearing and using firearms. Constitutional analysis of the 2nd Amendment, as with other fundamental rights, requires some kind of balancing of interests, which includes considering the state’s need to promote public safety.
Vikram D. Amar is dean and professor of law at the University of Illinois College of Law. Alan E. Brownstein is professor of law at the UC Davis School of Law.
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