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Who’s Right on Second?
Living, breathing decisions.


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Someone asked me yesterday, after the Ninth Circuit’s latest decision about the Second Amendment: Shouldn’t courts read the Second Amendment as part of an evolving Constitution? Say the Ninth Circuit was wrong, last year’s Emerson decision from the Fifth Circuit was right, and the Framers thought of the Amendment as securing an individual right. Shouldn’t judges update it due to the passage of time, based on evolving standards of justice and practicality?

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1. Well, here’s one way to justify this position: The Second Amendment as written was meant to apply only to the federal government, and can only apply to the states via the Fourteenth Amendment. Thus, when we consider what the Second Amendment means with regard to state laws, we shouldn’t look at what people in 1791 thought of the right-to-bear arms — we should look at what people in 1868 thought the Fourteenth Amendment would do as to the right-to-bear arms.

If we do that, we see that while in 1791 the Framers did think of the right as largely aimed at societal self-defense, including defense against government tyranny — albeit self-defense that would be assured through individual gun ownership — in 1868, people saw the right as also focused on private arms ownership aimed at protection against crime. The Freedmen’s Bureau Act of 1866 (surely not intended by Congress to preserve states’ powers to maintain their own armed military forces!) provided that

in every State or district where the ordinary course of judicial proceedings has been interrupted by the rebellion . . . the right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color, or previous condition of slavery [emphasis added].

Likewise, debates over the Fourteenth Amendment repeatedly referred to the need to protect freedmen and Union sympathizers from attempts by state governments to disarm them, and thus leave them vulnerable to criminal attack. An updated Second Amendment is thus at least as much an individual right as the original one.

2. Here’s another way, which I disagree with, but which some might urge: We should look at what the public today thinks about the Second Amendment. If we do this, we see that the overwhelming majority of Americans believe that the Second Amendment secures an individual right to-bear arms: For instance, in an abcnews.com poll from earlier this year, 73 percent took that view, and 20 percent took the states’ rights view.

Or perhaps the right question under this popular-sovereignty theory is whether the public thinks we should have the right-to-bear arms. The result would probably be similar: For instance, a Freedom Forum First Amendment Center poll earlier this year found that 48% of respondents saw “the right to own firearms” as “essential,” and another 31% saw it as “important.”

3. Here’s a third way to gauge evolving standards — look to how Americans see this right as reflected in state constitutions. These constitutions, after all, are formal expressions of the public’s will, and not just polls. But they are much easier to change than the federal constitution, so they should better reflect evolving views.

If we consider this, we’ll see that Bills of Rights in 44 of the 50 state constitutions secure a right-to-bear arms. Most of them are quite explicit in securing an individual right, but I think all of them have to be understood this way: A Bill of Rights in a state constitution surely can’t secure a right of the state, or of a small group selected and controlled by the state; it secures a right against the state.

What’s more, since 1970, 14 states all across the country have either added a right-to-bear arms provision to their state Bill of Rights, or strengthened an existing one. Here’s the most recent one, enacted in Wisconsin in 1998 by a 74 percent-26 percent vote: “The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.”

4. So under all these approaches, the right-to-bear arms should be read as forcefully today as in 1791 — or perhaps more so. What then do people mean when they say that “evolving standards” should lead courts to reject the individual rights view of the Second Amendment? Seems to me there’s only one meaning: That judges should look not to the Framers, not to the 1868 Ratifiers, not to state constitutions, and not even to polls — but only to what they think is right, or perhaps to what the social class to which they belong (elite urban lawyers) thinks is right. You don’t like a constitutional right, your honor? You don’t think it makes sense today? No problem! Just evolve it out of existence.

“The very purpose of a Bill of Rights,” Justice Jackson wrote in the 1943 flag-salute case, “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” Words to live by, it seems to me.



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