William and Mary Law School

An Excerpt from Why Protect Private Arms Possession?

An Excerpt from Professor Green’s article, "Why Protect Private Arms Possession? Nine Theories of the Second Amendment," published in Nortre Dame Law Review (2008), is reprinted below. For the full article, please click here.

***
The Second Amendment to the United States Constitution 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.” Until recently, federal courts adopted a “collective-right” interpretation of the Amendment. According to this interpretation, the Second Amendment’s scope is limited by its prefatory clause: the people have a right to bear arms only insofar as it contributes to a “well regulated Militia.” Furthermore, the term “Militia” refers to organized state militias, whose only modern equivalent is the National Guard. Under the collective-right interpretation, the Second Amendment protects the interests of state governments, not individuals. For this reason, only regulations of firearms that impair states’ abilities to arm their militias can be unconstitutional. No challenged regulation has ever come close to this threshold.

District of Columbia v. Heller changed all that. The Supreme Court, in an opinion authored by Justice Scalia, held that the Second Amendment protects an individual right to bear arms for purposes unrelated to state militia service, including personal self-defense, and struck down two gun control laws on the ground that they violated this individual right.  The District of Columbia’s prohibition on most private ownership of handguns was unconstitutional because it banned a class of arms that “is overwhelmingly chosen by American society for [self-defense].”  Its requirement that other firearms be kept disassembled
or bound by a trigger lock or similar device that would render them incapable of immediate use was struck down because the law made it “impossible for citizens to use them for the core lawful purpose of self-defense.”

This Article will not discuss the textual and historical arguments Scalia offered in favor of his reading. I will assume that the Second Amendment protects an individual right to bear arms. At the same time, I will not address the normative question of whether the Second Amendment would exist in an ideal world—that is, whether individuals’ interests in arms possession truly merit constitutional protection.

The method of this Article can best be described as normative reasoning under constraint. Assuming that there should be an individual constitutional right to bear arms, what are the best normative arguments available in favor of this conclusion? What are the most plausible individual interests in private arms possession that such a right would protect?

Such an inquiry would not be necessary if Scalia had provided a detailed account of these interests himself. To be sure, his opinion is peppered with references to the “natural” or “inherent” right of self-defense. But he does not say why the natural right to self-defense exists or how it grounds a right to bear arms.

Indeed, Scalia fails to answer what is surely the most fundamental question about the right to bear arms, namely whether it exists because it contributes to our safety. Granted, when I use arms in justifiable self-defense against a violent intruder, that act makes me safer. But a system of private arms possession, in which others (including the intruder himself) also possess arms, might increase my vulnerability to violence. Is Scalia saying that the Founders rejected this possibility? Was the Second Amendment enacted because a system of private arms possession was thought to make citizens safer than one in which they were disarmed? Or did they think individuals have some autonomy interest in arms possession worth protecting even in the face of increased violence? And if the Second Amendment does protect an autonomy interest, what is this interest? As we shall see, this matter is far more complicated than it might at first appear.

In this Article, I will seek to identify the most plausible interests in private arms possession that might stand behind the Second Amendment, even if these interests would not justify the decision in Heller. For example, one possible justification for the Second Amendment is that it protects our democratic institutions by empowering citizens to rebel by force of arms against a tyrannical minority. Although this justification can explain why individuals, and not merely states, have Second Amendment rights, it fails to explain the result in Heller, since it gives us no reason to believe that individuals have constitutionally
protected interests in the use of arms in self-defense against private violence. 

I will concentrate, however, on interests that could justify the Heller decision. Indeed, an ideal account would justify, not merely the result in Heller, but the other claims that Scalia made, in dicta, about the scope of the Second Amendment. Most significantly, he argued that individuals have a constitutionally protected interest only in bearing arms “typically possessed by law-abiding citizens for lawful purposes,” a principle that would exclude “dangerous and unusual weapons” such as machine guns. The closest I will come to such an ideal account is the argument that the Second Amendment protects bearing arms in self-defense, not as a means of making us safer from violence, but out of respect for Lockean values of autonomy and individualism.  Once again, I offer these arguments not as a defender of the Second Amendment, but rather as a defender of principled reasoning about questions of constitutional law. Sensitivity to the variety of possible interests protected by the Second Amendment is essential to any intellectually responsible discussion of the topic. This is true even if one seeks solely to discern the Founders’ intent. Unless one is aware of all the reasons they may have thought private arms possession was worthy of constitutional protection, one stands the chance of overlooking their actual reasons.

Clarity about the Second Amendment’s purposes is particularly important when deciding questions of scope unanswered by Heller.  Consider, for example, the appropriate standard of review for laws that infringe upon protected Second Amendment interests—a matter that Scalia left open in his opinion. Should the standard be strict scrutiny, which upholds such laws only if they are justified by a compelling governmental interest and are narrowly tailored to further that interest? In free speech contexts, whether strict or intermediate scrutiny is chosen depends upon the strength of the interest at issue. Laws that burden commercial speech, for example, get intermediate scrutiny because the interests standing behind such speech are less significant.  We cannot figure out which standard of review the Second Amendment deserves without a theory of the interests it protects. 

Another question of scope left unanswered by Heller is whether the Second Amendment should be incorporated into the Fourteenth Amendment Due Process Clause and applied to the states. Incorporation has been held to apply only to those provisions in the Bill of Rights that are “fundamental to the American scheme of justice.”

For example, the Sixth Amendment right to a jury trial was held to be incorporated because it was a “fundamental right” that protected criminal defendants’ interests in a fair and unbiased trial.  Once again, we cannot know whether the Second Amendment deserves the same treatment without a theory of the interests it protects. Although I will not seek to resolve these important problems of the Second Amendment’s scope in this Article, the interests in private arms possession that I identify must form the basis of any resolution.

In his opinion, Scalia did not merely state that individuals have an interest in private arms possession. He described them as having a natural right to bear arms, a right that preexisted the enactment of the Second Amendment. This natural right would have limited the government’s authority even if the Founders had failed to recognize it in the Constitution. In keeping with Scalia’s account, the justifications I describe will generally seek to explain how the interests individuals have in private arms possession are sufficiently fundamental to limit the authority of the government.  In many cases, these justifications will rely on Lockean arguments about the limits of governmental authority. For Locke, the source of the government’s authority is the consent of the governed, and the limits of this authority are determined by the scope of that consent. It is useful to discuss the Second Amendment in the context of Locke’s theory of political authority, because it was popular among the Founders.  But because many today no longer accept this theory, I will also attempt to outline how such justifications might fare under theories that do not take political authority to depend upon consent.