Should 2nd Amendment ‘Rights’ Be Based on Facts Or Beliefs?

The Brennan Center for Justice, part of the Law School at NYU, is named after the late SCOTUS Associate Justice William Brennan, who came from a family of Irish immigrants in New Jersey and ended up serving on the Court for more than thirty years. During that time, he authored 461 majority opinions, of which perhaps the most important, Baker v. Carr, established the principle of ‘one man, one vote.’  Brennan viewed government as the ‘great equalizer,’ and the Center which bears his name is particularly busy these days insofar as our current Chief Executive seems obsessed with tilting the balance in one particular way. And if you don’t know which way I’m talking about, I’m sorry to have bothered you and please go back to sleep.

2A             In 2016 the Brennan Center held a colloquium on the 2nd Amendment which has become a more significant element in the world of scholarly jurisprudence since the landmark Heller decision handed down in 2008.  The papers presented at that meeting have just been published online, and while I intend to discuss the entire collection at some point, several of the individual contributions deserve attention, the first being the paper authored by Eric Ruben, who happens to be a Brennan Fellow specializing in 2nd-Amendment scholarship and law. I should add that I was invited but did not attend the Brennan Center event.

Ruben’s paper is extremely important because it strikes at what is perhaps the major issue confronting gun law right now, i.e., the perceptions that individuals and communities hold about the social utility of guns; i.e., do guns protect or threaten public safety?  Because even though Heller says that Americans have a ‘right’ to own a gun, on what basis can government limit that right, for example, the way that government limits free speech? After all, speech isn’t protected if you yell ‘fire’ in a crowded theater, so why should owning a gun be Constitutionally guaranteed if it is perceived that a community’s safety is threatened by a resident of that community whose house contains a gun?

This issue was addressed by Ruben with reference to Friedman v. Highland Park, where the Chicago suburb of Highland banned AR-15 rifles and large-capacity magazines because the law would “increase the public’s sense of safety,” even if the odds of a mass shooting occurring in the town were little to none. Although the case was appealed, notwithstanding a dissent from Thomas and Scalia, certiorari was denied because the town government had an interest in the public feeling safer, even if there was no evidentiary proof that the gun ban would actually make the community a safer place.

Ruben discusses examples of 1st Amendment cases where laws regulating speech were based not on actual damages caused by what someone said but the perceptions about how government viewed a certain kind of speech. But as for the 2nd Amendment, Ruben notes that other than allowing the ownership of a handgun in the home, 2nd-Amendment rulings based on perceptions is a wide-open field. Which means that the issue of gun ‘risk’ could possibly be used as a criteria for determining whether gun regulations are consonant with 2nd-Amendment ‘rights.’

If you are concerned about reducing gun violence, the importance should not be understated regarding what Ruben has to say. Gun-nut Nation rests its entire strategy for weakening gun regulations on the idea that the risk from guns is mitigated because guns keep us ‘safe.’ Now in fact, there is absolutely no evidence which even hints that such an argument can be shown to have the slightest relationship to the truth. But here is where the perception issue as a rationale for regulation becomes somewhat sticky, because in a gun-owning community the residents might want their perceptions that guns keep them safe (as opposed to representing a risk) to be protected under statute as well. But if the issue ended up in Court, we might get a more evidence-based discussion than what we currently hear from the NRA.

8 thoughts on “Should 2nd Amendment ‘Rights’ Be Based on Facts Or Beliefs?

  1. Very interesting! I wonder why there isn’t more written about the “militia” interpretation of the 2nd amendment?

    Sent from Gail Lehmann’s iPad 203-438-7755


      • Presser v. Illinois, 116 U.S. 252 (1886) should be brought back into the Second Amendment “scholarship” if we are going to address that. The two of the three pre-Heller-McDonald cases have been ignored.

        United States v. Cruikshank, 92 U.S. 542 (1875) said that the Second Amendment applied to state actions (IOW, individuals can abridge whatever right the Second Amendment guaranteed). It didn’t get into the meat.

        On the other hand, Presser, dealt with a group of people training and parading with guns. It is pretty much a refutation of the “unorganised” militia argument. The Second Amendment only relates to the common defence aspect of the constitution iIf one takes this passage from US v Miller as a guide:

        “The Constitution as originally adopted granted to the Congress power- ‘To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.’ U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

        In fact, the Constitution explicitly says it addresses matters of the common defence. No where is self defence mentioned in that document. Any first year law student knows that if a legal text is silent on something, that that something is not covered under the law.

      • Presser said that states can ban private militias. It didn’t say that the 2A was not an individual right. The majority in Heller agree.

      • Did you actually READ Presser?

        “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.”

        It sounds to me that they are interpreting the Second Amendment as relating to the common defence.

      • Using the assumption that there was a belief that the Second Amendment applied to individuals prior to the revisionist opinions which formed a cottage industry from 1990 on, Presser would have wrongly been decided.

        Up until Heller, the Second Amendment was held to be as Justice William O. Douglas explains in his dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972):

        “The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which 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.”

        There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.

        The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”

        “The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.”

        I think that is worth more than the rubbish that has been expounded on the topic given that Justice Douglas was actually ON the Supreme Court when Miller was decided!

  2. Thanks for the links.

    As far as analogies to the 1A, there are virtually no prior restraints on protected speech or the press (Pentagon Papers, The Progressive, flag burning, cross burnings when not directly attacking an individual, etc, are good examples where the government was slapped down), i.e. one is sanctioned after falsely shouting fire in a crowded theater. No one is banning speech in advance to make sure it is not misused. Banning some or all guns based on real misuse or concerns of misuse would be the analogy of prior restraint.

    Secondly, Eugene Volokh (I note his absence in the program) has opined that laws have to be based on some reasonable assumption that they will actually work rather than just make people feel good if they abut against an enumerated right. Feel good law and regulation (such as recent university attempts to sanction students for “microaggression” or harmful speech, even though it is ill defined and never proven to harm anyone) run the risk of trampling on rights based on feelings and that’s not a great idea.

    Something somewhat relevant here.

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