Gun Rights and Our National Identity Crisis

By Daniel Lazare, The Nation. Posted April 22, 2008.

Like the Third Amendment against the peacetime quartering of soldiers in private homes, the Second Amendment used to be one of those obscure constitutional provisions that Americans could safely ignore. Legal opinion was agreed: this relic of the late eighteenth century did not confer an individual right "to keep and bear arms," only a collective right on the part of the states to maintain well-regulated militias in the form of local units of the National Guard. While a few gun nuts insisted on their Second Amendment right to turn their homes into mini-arsenals, everyone else knew they were deluded. Everyone knew this because the Supreme Court had supposedly settled the matter by unanimously dismissing any suggestion of an individual right in 1939.

But now everyone knows something else. Ever since a University of Texas law professor named Sanford Levinson published a seminal article, "The Embarrassing Second Amendment," in the Yale Law Journal in 1989, the legal academy has had to take another look at a provision that Laurence Tribe, the doyen of liberal constitutionalists, described ten years earlier as having no effect on gun control and as "merely ancillary to other constitutional guarantees of state sovereignty." Now such comfy notions are out the window as the National Rifle Association's view that the Second Amendment confers an individual right to own guns gains ground. While some scholars, such as Mark Tushnet, author of the new study Out of Range, argue that an individual-rights reading still allows for extensive gun control, others are frank enough to admit they're not sure what this oddly constructed amendment does and does not allow (although they'll still hazard a guess). As a prominent constitutional scholar named William Van Alstyne once remarked, "No provision in the Constitution causes one to stumble quite so much on a first reading, or second, or third reading." It is as if the legal academy, shaking its head over the First Amendment, suddenly could not make up its mind as to whether that hallowed text protected free speech or prohibited it.

What's going on here? Surely a mere twenty-seven words, loosely tethered together by three commas and one period, can't be that impenetrable. But they are; and if ever there was a Churchillian "riddle wrapped in a mystery inside an enigma," the Second Amendment is it.

Perhaps the best way to begin unraveling this puzzle is to think of the amendment not as a law but, with apologies to Tom Peyer and Hart Seely, as a bit of blank verse:

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.

It's rhythmic and also somewhat strange, as proper modern verse should be. As to what it actually means, the questions begin with "well regulated" in line one. The phrase is confusing because when Americans hear the word "regulation" or any of its cognates, they usually think of government restrictions on individual liberty. But if a government-regulated militia is necessary for a free society (the meaning, presumably, of "a free State"), then how can the amendment mandate an individual right that the same government must not infringe? It is as if the amendment were telling government to intervene and not intervene at the same time.

This is certainly a head-scratcher. Yet the questions go on. Another concerns line two, which, while asserting that the militia is "necessary to the security of a free State," does not pause to explain why. Perhaps the connection was self-evident in the eighteenth century, but it is certainly not in the twenty-first. Today, we can think of a lot of things that are important to the survival of a free society: democratic expression, honest and fair elections, a good educational system, and a sound and equitable economy. So why does the amendment "privilege" a well-regulated militia above all others?

Finally, there are the questions posed by lines three and four. Why "keep and bear" rather than just "bear"? What does "Arms" mean -- muskets, pistols, assault rifles, grenade launchers, nukes? Finally, concerning the phrase "the right of the people to keep and bear Arms," the individualist interpretation holds that eighteenth-century Anglo-Americans viewed this as part of a natural right of armed resistance against tyranny. But if this was the case, why put it in writing? After all, Americans were well armed in the aftermath of the Revolutionary War and hair-trigger sensitive to any new tyrannical threat. Why, then, approve an amendment acknowledging the obvious? After asking Americans to ratify a new plan of government, why did the founders then request that they assert their right to overthrow it?

Questions like these are the subject of Tushnet's Out of Range. With the Supreme Court poised to issue its first gun-rights decision in nearly seven decades in District of Columbia v. Heller, a case the Court heard on March 18 and that involves one of the most sweeping citywide gun bans in the country, Tushnet's brief but dense primer on the Second Amendment and its relationship to the gun-control battles of the last quarter-century could not be more timely. Unfortunately, it also could not be more frustrating. Tushnet, a professor at Harvard Law School, suffers from an excess of caution. Understandably, he is determined not to be one of those overconfident types who, as he puts it, are just "blowing smoke" in claiming to know precisely what the Second Amendment means. As a consequence, he advances a couple of possibilities as to what it might mean, explains why one interpretation may have an edge over the other and then announces that the whole question may be beside the point, since it has little to do with reducing gun-related crime. In fact, he argues that the long-running debate over the Second Amendment may be

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