Tuesday, January 22, 2013

Traditional Conservativism, the Second Amendment, and Gun Laws

The horrific shooting at Newtown, CT, has renewed the debate over gun control measures. I have noticed lots of my friends who consider themselves conservatives posting a lot of FB status updates on this issue, so I thought I would weigh in on the issue from my perspective of traditional conservativism.

First of all, I'd like to take a swing at the issue from the standpoint of the Constitution. The Second Amendment says:

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.
I am going to assume for the sake of argument that anyone who thinks of themselves as a conservative would accept as a given the simple premise that the only legitimate way to interpret the Constitution is to look at what the words would have meant to those who wrote it. We are not at liberty to invent our own meaning; we must seek the original understanding. 

If that is the case, the text of the Second Amendment clearly states that the right to keep and bear arms is predicated on the necessity of a "well regulated militia." Since we no longer use a militia system - the very basis on which the right to keep and bear arms was expressly predicated - this amendment cannot be construed to provide an unlimited individual right to keep and bear arms. 

In fact, for nearly the entire history of the Supreme Court, the Court rejected the notion that this amendment applies to simple individual rights to gun ownership. In Miller Vs Texas (1884), the Court rejected the notion that the Bill of Rights applied to state rather than federal laws, and that states had the right to legislate gun licensing (oh, how I wish the Court had continued to see the obvious point that the Bill of Rights applies to the federal and not the state government). And in its unanimous 1939 United States vs Miller decision, the Court stated:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to any preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
It was not until the 2008 decision in DC vs Heller that the Court found an individual right to bear arms irrespective of a militia. 

The great temptation (as Robert Bork famously called it) in constitutional jurisprudence is to create a right or meaning of the Constitution that the framers never intended because you believe such an right or interpretation should exist. Normally, we think of liberal justices engaging in such judicial activism, but "conservative" justices can as well, and this was a clear case. In fact, as one conservative critic has pointed out, the justification used by the Roberts Court in Heller is eerily similar to the justification used by the Warren Court in Roe V Wade

Having said that, just because the Second Amendment itself does not guarantee the right to gun ownership by individual citizens, that doesn't mean gun ownership is unlawful. It just means that it is up to each state to determine its own gun laws (and to make sure that a citizen is not deprived of his property without due process). Further, the very concept of personal property rights must include the right to defend that property.

In earlier posts I have suggested that traditional conservativism always favors the local over the centralized. On this basis it is unreasonable to imagine that every state should have the same gun laws. And it means that any federal action is highly suspect. There is always the great danger of momentary crises turning into power grabs at the federal level, and once that happens, the power is almost never relinquished.

So in the case of the Newtown shooting, it doesn't make a lot of sense to me that Washington is scrambling to do something about this issue. Off the top of my head, the only constitutional basis on which the federal government could become involved in something like gun control is regulating/prohibiting the sell of assault weapons on the basis of the interstate commerce clause. Otherwise, it seems to me that laws about gun registration and limits about magazines, etc are state issues, not federal issues, and should be settled by state legislatures.


  1. Fantastic thoughts, Shane, I agree with you... sort of. I am in complete agreement with your conclusion that matters of gun control rest with state legislatures and not congress. My rather minor disagreement is in your interpretation of the 2nd Amendment in its original context. Yes, the second amendment is speaking in regards to a militia system which fits considering our nation was born our of an armed uprising. However, at the time, states did not maintain large standing militias. The second half of the amendment I feel needs a little more attention. It is the right of the people (as individuals in my interpretation) to keep and bare arms. Under a militia system the state did not necessarily furnish weapons. It was incumbent on the soldier to supply their own gun and often ammunition. With that as the historical context I see an individual right to gun ownership being an integral part of the 2nd Amendment.

  2. Hey Dustin, thanks for your comment. Here is how I would draw out import of the 2nd amendment. The amendment assumes that individuals may own guns, and on the basis of that assumption says that since (at the time) a well-ordered militia system was needed, the right to bear arms should not be infringed. But the right to bear arms is predicated on the militia system. The assumption that citizens may own guns is based on common experience and common law, as it played out from state to state. The right to bear arms in keeping with a militia system is protected by the 2nd amendment. But the broader issue of individual gun rights is not. The best one could say is that widespread gun ownership is assumed by the amendment. But to draw from this that there is a carte blanche individual right to own guns guaranteed by the amendment requires fiddling with the original understanding.

  3. So the assumption that the right is based on a militia system, doesn't account for the fact that historically, the militias used in both the Revolution and the Civil War were not established organizations, but were created in that time of need and disbanded shortly after the crisis ended.

    Meaning that even though we no longer have an established militia system does not mean that we won't have a need of a militia system in the future. Given that, the requirement of an individual to have arms suitable for militia purposes, which as I understand is your view, is still valid. There may be some internal crisis in the future that requires the creation of militias beyond the federal military and state national guard systems. Therefore, my right to own a weapon of some type should not be interfered with from the federal government, especially not using the commerce clause as they currently do.

    As far as the state's right to regulate arms, I would agree with you on that, so if a state has a constitutional clause or amendment that protects these rights, then I would say that state should not create laws either. If the state doesn't have those constitutional protections, then they would have the right to regulate.