Michael Luo’s report in The Times does much to expose how the sensible case for ordinary gun ownership can so easily go astray. In general, a strong case can be made for allowing ordinary citizens to carry guns after a modest background check. These guns could be used defensively and thus in some cases could easily prevent crimes that lawless individuals might otherwise commit.
Why any reading of the Second Amendment is invoked in support of felon’s rights to carry guns remains a sad mystery.
Even the most modest background check, however, would normally rule out allowing individuals with unstable personal histories, let alone criminal records, from carrying guns, given the added risk that they pose to society. Why some jurisdictions restore felons’ rights to carry guns is unclear, given the manifest risks that they pose on everyone else.
One sad feature about the current move is that the Second Amendment’s protection of the right to keep and bear arms is invoked to support this dubious and dangerous practice. As an initial matter, Justice Antonin Scalia’s decision in that case — which excises all reference to the “well regulated militia” — is, I think, wrong on historical and textual grounds. The purpose of the clause was to make sure that the federal government could not disarm state militias. There is no reason to think that it applied to state regulations of firearms, or should be read that way.
But even if Justice Scalia were right, he made it clear that the right to keep and bear arms was not categorical, but could be circumscribed in order to protect the public interest in health and safety. Why any reading of the Second Amendment is invoked in support of felon’s rights to carry guns remains a sad mystery.
The proper role for gun regulation is to weed out those individuals who pose an extra risk of damage to other citizens. The lax procedures that are used to restore gun rights to ex-felons show yet again the dangers of over-reading the Second Amendment.
Richard A. Epstein is the Laurence A. Tisch Professor of Law at New York University Law School, the Peter and Kirsten Bedford Senior Fellow at The Hoover Institution, and Senior Lecturer at the University of Chicago Law School.
UPDATED MARCH 22, 2012, 2:26 PM