THE BLOG
12/15/2012 11:36 am ET Updated Feb 14, 2013

Supreme Interference: The Justices' Improper and Dangerous Reading of the Second Amendment

From 1788, when the Second Amendment was ratified, until 2001, no federal judge in the United States had ever held that the militia orientated language of the Amendment applied to an individual's right to own guns. During all those years defendants frequently raised the Second Amendment defense when prosecuted for violating gun control laws, and they were never successful. Then in 2008, the Supreme Court, by a 5-4 vote, held in District of Columbia v. Heller, that, despite a previous Supreme Court case to the contrary, the Second Amendment protects the right to own guns for self-defense and hunting. Most historians disagree that the Amendment was intended for such purposes, and the four dissenting Justices couldn't help but accuse the conservatives on the Court of engaging in the worst kind of judicial activism. In addition, two of the most conservative, scholarly, and respected court of appeals judges in the United States (Judge Harvey Wilkinson and Judge Richard Posner) have written that the Court simply got it wrong. And, last week, Judge Posner had to engage in the painful exercise of voting to overturn an Illinois gun control law on the basis of Supreme Court precedent, even though he personally disagrees with that precedent.

We now live in a world where the highest court in the land has held that the right to own guns is similar in nature to the right to free speech. Therefore, to pass constitutional muster, gun control laws have to be more than reasonable, the normal constitutional test for governmental action, though the Court has yet to tell us how much more than reasonable those laws have to be. We live in a world where the foundational charter of our country, according to the Court, protects the right to own a gun but not the right to food, clothing, shelter and medical care. We live in a world where the Court gave its stamp of approval to the idea that owning guns is an essential element of the pursuit of life, liberty, and happiness. We live in a world where elected officials are not allowed to balance the pros and cons of gun control without judicial interference. We live in a world where the President of the United States has to tearfully confess that gun tragedies are all too common and "meaningful action" must be taken.

I want to imagine a different world. Let's pretend that one of the five conservative Justices in Heller decided to act like a judge not a legislator. In that world, the Court would have looked at the following language, "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," and made three findings. First, he would have concluded that the text is ambiguous and could be interpreted either as protecting an individual right to own guns or just protecting the right to participate in a "militia." Given the ambiguity, he would have adopted the reading giving elected officials maximum discretion. Second, a responsible judge would have chosen that reading because history supports it. The founding fathers were afraid of standing armies and a tyrannical federal government disarming official state militias. Individual self-defense and hunting had absolutely nothing to do with why the Second Amendment was enacted. Third, and most importantly, the founding fathers could never have anticipated assault weapons that could shoot hundreds of bullets in a matter of seconds nor tiny hand guns that can be hidden in a pocket yet still kill people with the pull of a trigger. Whatever concerns animated a document in 1788 simply cannot help us determine effective gun policy in 2012. The balance between protecting gun rights and avoiding gun violence is a public policy question that should be determined by elected and accountable governmental officials not unelected, life tenured judges.

The problem with the Heller decision is not just that it allows judges to interfere with gun control legislation. The problem is that five Supreme Court Justices gave their stamp of approval to the idea that owning a gun is as central to our ideas of a civilized country as speaking in the public square. The decision gave momentum to the NRA's ongoing efforts to defeat any and all gun control laws and, because it was draped in constitutional legitimacy, moved the contours of the debate away from serious efforts to stop gun violence through gun control legislation and instead to the constitutional nature of the right to own guns.

The right to own a gun is nowhere near as important as the right to free speech, Justice Scalia's comments notwithstanding. The harm caused by guns, or people who use guns improperly, is far greater than the harm caused by dangerous uses of speech. I don't know what the best gun policy is but I am confident neither do the Justices of the United States Supreme Court. Something has to be done to make it harder to kill innocent people and what that is should have nothing do with judges or constitutional values. It is a public policy question pure and not so simple. The Supreme Court should just get out of the way (unless state militias come back and the federal government decides to act tyrannically). Only then does the Constitution matter.