Cross-posted on The Washington Post
When President Obama urged stronger gun laws as a part of anti-terrorism policy, he reminded us of a core fact of constitutional history. From the beginning, gun rights — including the Second Amendment — have been closely bound to the protection of the public. Rights and responsibility go together, as they do in other rights recognized by courts. When it comes to fighting terrorism, the Second Amendment should pose no obstacle — if it’s properly interpreted.
We all know the Amendment’s 27 comma-tangled words: “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.”
Why the amendment? Opponents to the Constitution as it was written were worried that it would enshrine a permanent standing army with dictatorial powers. They sought to preserve state militias made up of citizen-soldiers who brought their guns from home as a bulwark against tyranny.
The Revolutionary-era militias were like nothing we have today. All adult men (eventually, white men) were required to serve and were required to own a military weapon. At a time before the country had police or an army, this was how we kept communities safe.
The right to bear arms went along with a duty to serve. The entire debate over the Second Amendment in the House of Representatives, for example, revolved around militia service and how to treat conscientious objectors.
To be sure, Americans also had an individual right to protect themselves, a common-law right limited by many local gun laws. (At the time, for example, it was illegal to keep gunpowder at home in Boston, due to safety concerns.) But in the two centuries since, as militias faded away and Americans came to see gun ownership as a personal matter, we continued to link rights and responsibilities. We always understood that public safety was at stake.
In Dodge City, the archetypal Wild West town, a sign stood in the center of a dusty main street: “The carrying of firearms strictly prohibited.” Revolver laws were passed in the crowded cities of the turn of the 20th century because they were the guns most frequently used by criminals. The first federal gun laws banned sawed-off shotguns and machine guns because they were famously used by Bonnie and Clyde and other well-known bank robbers of the day.
One particularly striking example: In 1824, the University of Virginia’s six-member Board of Visitors approved a policy declaring that “No Student shall, within the precincts of the University, … keep or use weapons or arms of any kind, or gunpowder ….” Two of the board members who signed on to that decision? James Madison and Thomas Jefferson.
It was only a few years ago, in District of Columbia v. Heller, that the U.S. Supreme Court ruled that the Second Amendment recognizes an individual right to gun ownership. Previously it had ruled otherwise. Justice Antonin Scalia’s holding was considerably less operatic than his rhetoric. Government, he explained, could still prohibit “the carrying of ‘dangerous and unusual weapons.’” He pointed to military weapons, in particular — including the M-16 rifle, the military version of the kind of assault weapons apparently used in San Bernardino, Calif.
Since Heller and a companion ruling that applied it to individual states, courts have overwhelmingly upheld gun laws. Yes, there is an individual right to own guns, judges rule — some enthusiastically, some grudgingly. But the public, too, has a right to be protected. Repeatedly the high court has declined the chance to overrule this judicial consensus. Just this week, the Supreme Court declined to take a case that had upheld an Illinois city’s ban on assault weapons. Other measures, such as strengthened background checks and closing the gun show loophole, should plainly be seen as constitutional. These offer the strongest chance to address the everyday gun violence that claims many more lives than mass shootings.
What about denying guns to those on a terrorist watch list? In this instance, the constitutional questions are more complex. Courts have repeatedly upheld curbs on gun ownership by risky individuals, including those convicted of certain crimes or who unlawfully use controlled substances. But the proposed bill is silent on how the attorney general would go about populating the “no gun” list to avoid errors, as the current “no fly” list is notably inexact. What may matter most is the list’s accuracy and whether there is a process available to individuals to challenge inclusion — not whether the Second Amendment categorically prevents the denial of guns to suspected terrorists.
Recent events have provoked cognitive dissonance. After the mass shooting at a Planned Parenthood clinic, many gun rights defenders shook their heads sadly: You can never stop all shooters, they explained. We need better mental-health treatment. Then, a similar shooting — this time, by supporters of the Islamic State. Suddenly the public safety imperatives loom a little larger. Shouldn’t we agree to keep dangerous individuals, whatever their provenance, from having access to weapons of war?
As we debate what to do about the scourge of gun violence, we’ll hear a lot of spurious arguments that even modest measures trample on Second Amendment rights. Don’t believe them. We can have safety and freedom. Whatever complex choices we must make, let’s at least know that the Constitution doesn’t prevent us from making them.
(Photo: Thinkstock)