The 2nd Amendment According to Facebook

Scrolling through my Facebook news feed the other day, I came across a link to a provocative article from the Guardian arguing that Americans’ fascination with guns has become so destructive as to warrant international pressure to curb the violence.

The link brought out the usual suspects for the usual unproductive “never-the-twain-shall-meet” gabfest. Just as my eyes were starting to glaze over, I perked up at the preface to an extended attempt to dispel all the heat with a little light. Said this Facebooker, “Everyone loves to invoke the Constitution when they talk about the 2nd Amendment. Of course, the unfettered access to guns we have now is actually established in court precedent (or lack thereof) and not by drafters of the U. S. Constitution. There is, for example, no ban on the registration of guns specifically written into the 2nd Amendment.”

As one of the half-dozen or so nerdiest people in the country, I read Supreme Court opinions for fun. But not just for fun. I’m awestruck that we have an institution that for more than two hundred years has been holding what amounts to a continuous, very high-level seminar in the foundations of the Republic. Before the Internet era, the seminar was open only to people who had access to the tomes in which the Court’s opinions are published, the United States Reports. But now anybody who can read above eighth-grade level and has Internet access can join the seminar. What can I say? That just knocks me out.

So what about these “court precedents”? Do they, doing violence to the Constitution itself, affirm a right to “unfettered access to guns”? Any discussion of the Second Amendment has to begin with District of Columbia v. Heller, decided by the United States Supreme Court in 2008 by a vote of five to four. Justice Antonin Scalia wrote the majority opinion.

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.”  The District of Columbia, apparently in the belief that our Second Amendment rights apply only during militia service, banned the possession of handguns, even in one’s home. Heller struck down the ban, holding that the Second Amendment guarantees an individual’s right to possess handguns in the home for self-defense.

I’m not a lawyer so nobody should go to school on anything I say about Heller. If I can get you to read the opinion yourself—it’s on the Internet, remember--I’ve succeeded beyond my wildest dreams. Anybody doing that with reasonable care will discover, I think, that Second Amendment jurisprudence is relatively undeveloped, because of which we really don’t know much about our Second Amendment rights.

Marshaling a wealth of historical evidence, Justice Scalia argued that the Second Amendment wasn’t understood at the time of its ratification to confer some novel right, but merely codified an “ancient right” of individuals to possess arms for self-defense. Among the myriad supporting examples Scalia cites is one from Nunn v. State (1846), in which the Georgia Supreme Court said, “Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!”

Seizing on the narrow holding in Heller, that you have a right to keep handguns for self-defense in your home, states around the country took it as a green light to enact more permissive gun legislation than I think the Court actually endorsed, just relying on my above eighth-grade level reading ability. Scalia was careful to note in a passage apparently lost on some state legislatures, “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” He goes on to say “…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools or government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” At this point, Scalia adds in a footnote that his list “does not purport to be exhaustive,” leaving open the possibility that the Second Amendment may allow for still more regulations.

So, far from being entitled to confidence that our Second Amendment rights extend to the possession of firearms in bars, schools, churches, parks, government buildings, and the array of other places that some gun rights advocates want to see them in, we don’t even know yet whether we have a Second Amendment right to possess guns outside our homes. We’ll find that out if the state of Illinois appeals to the United States Supreme Court the Seventh Circuit Court of Appeals decision invalidating an Illinois law prohibiting the possession of guns in public. Until that question reaches the Supreme Court, the Seventh Circuit Court’s decision affirming a right to carry guns in public is just the law of the Seventh Circuit, not the law of the land.

So if we’re going to invoke the Constitution on this vexed issued, it’s worth keeping in mind that our Second Amendment rights aren’t what various state legislatures, the National Rifle Association or Facebook habitués say they are. Until the United States Supreme Court rules otherwise, they’re what District of Columbia v. Heller said they are. And that precedent expressly did not allow “unfettered access” to guns.