The Most Mysterious Right by Cass Sunstein
Out of Range
by Mark V. Tushnet (Oxford University Press, 156 pp., $19.95)
In 1991, Warren E. Burger, the conservative chief justice of the Supreme Court, was interviewed on the MacNeil/Lehrer NewsHour about the meaning of the Second Amendment’s “right to keep and bear arms.” Burger answered that the Second Amendment “has been the subject of one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups that I have ever seen in my lifetime.” In a speech in 1992, Burger declared that “the Second Amendment doesn’t guarantee the right to have firearms at all.” In his view, the purpose of the Second Amendment was “to ensure that the ‘state armies’—’the militia’—would be maintained for the defense of the state.”
It is impossible to understand the current Second Amendment debate without lingering over Burger’s words. Burger was a cautious person as well as a conservative judge, and the chief justice of the Supreme Court is unlikely to offer a controversial position on a constitutional question in an interview on national television. (Chief Justice John Roberts is not about to go on Fox News to say that the claimed right to same-sex marriage is a fraud on the American people perpetrated by special interest groups.) Should we therefore conclude that Burger had a moment of uncharacteristic recklessness? I do not think so. Burger meant to describe what he saw as a clear consensus within the culture of informed lawyers and judges—a conclusion that was so widely taken for granted that it seemed to him to be a fact, and not an opinion at all.
Flash forward to this past March, when the United States Court of Appeals for the District of Columbia Circuit enthusiastically embraced the very view that Burger had described as a “fraud.” In the process, the court struck down several handgun restrictions in the District of Columbia. And so the Supreme Court is now being asked to decide whether the Second Amendment creates an individual right to own guns. There is a decent chance that the Court will say that it does. Whatever the Court says, we have seen an amazingly rapid change in constitutional understandings—even a revolution—as an apparently fraudulent interpretation pushed by “special interest groups” (read: the National Rifle Association) has become mainstream. How on earth has this happened? Was Chief Justice Burger just wrong?
To understand the problem, we must begin with the text of the Second Amendment: “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 clause is divided into two parts. It starts with a kind of preamble, or perhaps an explanation, which is followed by a declaration of a right. Even at first glance, modern readers should be able to venture at least two interpretations of this provision. The first sees an emphatically individual right. Whatever the preamble says, the operative clause refers to “the right of the people to keep and bear Arms,” and proclaims that it “shall not be infringed.” The second interpretation emphasizes the unusual opening words: “A well regulated Militia, being necessary to the security of a free State.” With these words, the Second Amendment seems to specify its own purpose, which is to protect the “well regulated Militia.” If that is the purpose of the Second Amendment (as Burger believed), then we might speculate that it safeguards not individual rights but federalism—that it seeks to ensure that the new national government would not interfere with citizen militias at the state level. On what has become known as the collective rights view, “the right of the people to keep and bear Arms” does not mean that individual citizens can have guns. It means only that the national government must respect the right of “the people,” taken as a collectivity, to maintain organized militias for the common defense.
Suppose that we are “textualists,” in the sense that we believe that the Constitution must be construed in accordance with the natural meaning of its words. Honest textualists will have to agree that the Second Amendment is ambiguous, and that it could plausibly be interpreted in different ways. Stare at the words all you like, and you will hardly be able to be certain about which interpretation to choose. The legal scholar William Van Alstyne got it exactly right: “no provision in the Constitution causes one to stumble quite so much on a first reading, or second, or third reading.”
Many textualists are also originalists, in the sense that they believe that the meaning of the text is settled by the original understanding of those who ratified it. Originalists would want to ascertain what the meaning of the Second Amendment was in the latter part of the eighteenth century. Was it understood to create individual rights or not? If it was understood to create individual rights, what are the permissible limits on those rights? Originalists would find the central interpretive issue easy if, at the time of ratification, everyone understood the Second Amendment to create an individual right to have guns. The issue would be equally easy if the words “well regulated militia” were understood as a qualification of the right, and if the Second Amendment were universally understood, in its context, to be an effort not to protect private gun owners but to immunize state militias from federal abolition. Originalists would also be interested in seeing if some other interpretation not immediately obvious to modern readers turned out to be the dominant one at the time.
Of course, many people are not originalists. Constitutional law depends not only on the original understanding, but also on social practices and judicial interpretations extending over time. And if we are not originalists, we would want to know something about the American tradition of restrictions on gun use and ownership over the last, say, 150 years. We would also be interested in inquiring into whether courts have accepted one or another view, and if so, whether any particular interpretation has become an established part of existing law.
In his brisk, even-handed, and illuminating discussion, Mark Tushnet concludes that “there’s no definitive answer to what the Second Amendment means.” Those who find an easy answer are “blowing smoke.” As a matter of the original understanding, Tushnet thinks that “the pro-gun-rights position is a bit stronger than the alternative.” But if the original understanding is put to one side, and we consider “all the other components that go into good legal arguments,” it turns out that the “pro-gun-control position is significantly stronger than the alternative.” Taking the relevant materials as a whole, Tushnet thinks that “the gun-control story is slightly, but only slightly, better than the gun-rights one.” Tushnet’s punch line is that the real division is less legal than cultural: it involves not the founding era or the constitutional text, but the sharp and emphatically contemporary divide over the role and the meaning of firearms. To understand Tushnet’s argument, we need to go into some details.
Tushnet contends that the individual rights view actually comes in three distinct varieties, each having different implications for the scope of the right. On the most modest view, each of us has a right to have guns—but only for reasons connected with the maintenance of an organized militia, which can operate as a check on the national government. Our individual right is meant to enable us to band together in order to resist the national government if it gets out of hand. A somewhat more ambitious view insists that each of us has a right to have guns, not only to protect ourselves against government oppression but also to use if the government fails to protect us against criminals who threaten our persons or our property. On this view, restrictions on gun ownership are constitutionally questionable insofar as they disable people from responding to either public or private dangers. A third view is the purest one of all: it sees the right to keep and bear arms as a fully individual right, one that we can exercise as we choose (including for self-defense and for hunting) unless the government has a “compelling” interest (as, for example, in the prevention of murder and the protection of endangered species).
Insisting on the ambiguity of the text, Tushnet shows that things get even more mysterious when we investigate the history. What exactly is meant by the words “keep and bear arms”? Do these words mean the same thing as “own” or “have” arms? Tushnet says that in its historical context, “keep and bear” is a technical phrase, one that “referred to weapons in connection with military uses, even when the terms used separately might refer to hunting or other activities.” You do not “bear” arms if you carry a rifle to shoot rabbits (or bears). This point seems to suggest that whatever interpretation is correct, it should emphasize the military uses of guns (as opposed to, say, hunting or even purely private self-defense).
And what exactly is the “militia”? Modern readers might well be puzzled by this question. A constitutional amendment proposed in the Virginia Ratifying Convention offers a clue. It said that “the people have the right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms is the proper, natural, and safe defense of a free state.” This phrasing suggests that the “militia” is the “body of the people,” or more specifically, its able-bodied males who might be or have been trained and enlisted on the state’s behalf. With this point, Tushnet thinks that we should be converging on the view that on the original understanding, individuals do have some kind of right to have guns, at least insofar as gun ownership enables people to band together to defend themselves. On this view, the national government would not be permitted to disarm its citizens.
This reading has the advantage of fitting plausibly with the civic republican tradition that greatly influenced the founders. Republicans believed that a professional or “standing” army could endanger liberty because of its separateness from the people. From the standpoint of civic republicanism, an armed and engaged citizenry was the best way of protecting the national defense. In this sense, the right to keep and bear arms might even be seen as a sibling to the right to free speech and the right to petition the government for redress of grievances. Like the latter rights, the former was an important way of promoting self-government, and of reducing the risk that national officials would act on the basis of interests adverse to those of the citizenry itself. On this view, “We the People” would be sovereign insofar as we could speak out, petition the national government, and defend ourselves. And for committed republicans, participation in the militia is not merely a right, it is a civic duty as well. (There are implications for the idea of national service.)
To be sure, the text of the original Constitution raises some immediate issues here. Congress has the power to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Congress also has the power to “provide for organizing, arming, and disciplining the Militia,” while the states retain power over “the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” Do these provisions undermine the claim that the Second Amendment protects individual rights? Tushnet does not think so. Of course the Constitution recognizes the existence of state militias, and also Congress’s powers over them, but the Second Amendment can nonetheless be understood as an effort to allow “the people” to arm themselves.
Apparently supporting the pro-gun reading, William Blackstone, a large influence on the Framers, explicitly referred to the right to bear arms as “a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” Joseph Story, a Supreme Court justice from 1811 until his death in 1845 and an immensely influential early commentator on the constitution, wrote that the right “to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers.” Revealingly, some state constitutional provisions seemed to create individual rights. Pennsylvania stated plainly, for example, that “the right of the citizens to bear arms, in defense of themselves and the State, shall not be questioned.” And a “minority report” in Pennsylvania, objecting to ratification, referred broadly to the people’s “right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game.”
But it is misleading to take quotations out of context, and the original sources do not provide unambiguous support for the pro-gun position in its modern form. Blackstone’s discussion goes on to link the right to bear arms with the ban on standing armies: “Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” Taken as a whole, Story’s own discussion emphasized less an individual right to have guns than the uses of the militia. North Carolina’s Constitution seemed to suggest a collective right rather than an individual one, or at least the connection between the right and the fear of standing armies: “the people have a right to bear arms, for the defence of the State; and as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up.” Even Pennsylvania’s seemingly unambiguous provision might be understood as part and parcel of an objection to a standing army. The minority report in Pennsylvania did refer to a right to hunt, but hardly any other sources spoke in terms of a right to have or use guns for nonmilitary purposes. Summarizing the early history, the Tennessee Supreme Court wrote in 1840 that the real object of the right to keep and bear arms “is the defense of the public” and thus it refers to “military use.” It follows that a hunter “might carry his rifle every day for forty years, and yet it would never be said of him that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or a pistol concealed under his clothes, or a spear in a cane.”
Still, Tushnet concludes that if the admittedly complex and divergent sources are put together, they provide “substantial support for some individual-rights interpretation.” He adds that the most convincing such interpretation “connects the individual right to the operation of the citizen-militia: We each have the right to keep and bear arms so that we can participate in the militia—the body of the people—and thereby keep governments from becoming tyrants.”
In constitutional law, the Court’s own precedents play a significant role. It is both striking and noteworthy that, well over two centuries since the founding, the Court has never held that the Second Amendment protects an individual right to have guns. The leading decision, from 1939, is United States v. Miller. The case involved the National Firearms Act of 1934, which banned possession of a sawed-off shotgun. A unanimous Supreme Court rejected the trial court’s conclusion that the statute violated the Second Amendment. Sounding like Chief Justice Burger, the Court said that the Second Amendment’s “obvious purpose” was “to assure the continuation and render possible the effectiveness of” the militia, and that its “declaration and guarantee … must be interpreted and applied with that end in view.” The Court emphasized “the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia.” Without such evidence, the Court was unwilling to say that the Second Amendment protected the right to have such a weapon, which, the Court added, was not “part of the ordinary military equipment” whose use would contribute to the common defense.
At a minimum, this passage seems to suggest that Congress has complete power over weapons that are not or have not been ordinarily used by the military. It also seems to reject the strongest versions of the individual rights interpretation: consider the Court’s suggestion that the “declaration and guarantee” must be construed with close reference to the goal of assuring the continuation of the militia. In any case, the lower federal courts have overwhelmingly endorsed the collective rights view; numerous cases reject the conclusion that the Second Amendment protects an individual right. A representative statement, from a court of appeals in 1971, insists that the Second Amendment protects the “right of the state to maintain a militia” and does not create an “individual right to possess a firearm.” It was not until the twenty-first century that (only two) lower federal courts, packed with Reagan and Bush appointees, adopted the pro-gun interpretation—with one such decision in 2001 and another in 2007.
Even if the Second Amendment does confer an individual right, and therefore imposes limits on national gun-control legislation, a further question remains. Does the Second Amendment apply to the states? By its plain terms, the original Bill of Rights applies only to the national government. To be sure, most (but not all) of the listed rights are now understood to have been “incorporated” in the Fourteenth Amendment and made applicable to the states through that route. But is the Second Amendment incorporated as well? When the Fourteenth Amendment was ratified, there was disagreement over that question, and general agreement that states had considerable power to regulate firearms. In 1886, the Court unanimously ruled against incorporation, and no lower federal court has rejected that ruling.
In interpreting the Constitution, judges pay attention to social practices, and not only to judicial precedents. If federal and state governments have long regulated gun use, creating a tradition of such regulation, many judges would be reluctant to invoke the original understanding in order to upset that tradition. Tushnet finds that, since the Civil War, gun regulation has been common—and it has rarely been challenged on constitutional grounds. He concludes that the last century and a half shows a simple pattern: “A substantial body of laws regulating weapons possession and a small number of opinions addressing Second Amendment objections to such laws, with no opinions from appellate courts invalidating any modern regulations, and an apparent lack of interest by the Supreme Court in taking fundamental Second Amendment questions.”
Whatever the view of the founding generations, Tushnet remarks, ours has been “a tradition in which the Second Amendment imposes at most extremely weak, perhaps indiscernible, limitations on the government’s power to regulate the use and possession of weapons of any sort.” He adds that technology has obviously changed since 1791. The national government now has nuclear weapons, airplanes, bombs, and tanks. Citizens armed with pistols and rifles cannot protect themselves against the nation’s military force. So perhaps new technology “has made the Second Amendment obsolete were it taken to protect only the right to keep and bear guns and rifles, and ridiculous were it taken to protect the right to keep and bear bazookas.”
In Tushnet’s view, there is an evident conflict between the original understanding and the legal arguments based on judicial precedents and social practices. He urges that in the face of such conflicts, the original understanding tends to yield. In the context of free speech, for example, we have gone far beyond the original understanding, protecting commercial advertising and even political dissent in ways that would have astonished the founding generation. Tushnet thinks that if we reject originalism, we will probably conclude, on the basis of social practices and judicial decisions, that the Second Amendment does not protect an individual right.
Tushnet also investigates policy issues. Does gun legislation do any good? He explores “safe storage” laws, which require people to keep their guns locked up at home; “must issue” laws, which actually encourage gun ownership by requiring law enforcement officers to issue licenses to carry concealed weapons; and stricter enforcement of existing gun-control policies. Tushnet emphasizes that econometric studies, trying to measure the effects of these policies, often fail to produce clear results. Social scientists disagree on the effects of safe storage laws. At the very least, no clear evidence suggests that such laws have a significant impact on reducing gun-related violence. The economist John Lott found that “must issue” laws decrease gun-related deaths; he concluded that if criminals know that law-abiding citizens might be carrying guns, they are less likely to engage in violent crime. But Lott’s studies have been subject to vigorous objections, and a committee of the National Academy of Sciences, finding the evidence inconclusive, was unwilling to accept Lott’s argument. Greater enforcement of existing laws does seem to have produced significant decreases in murder rates, but even here the evidence has been disputed, and it is expensive to enforce existing laws.
Tushnet concludes that the dispute over the Second Amendment, and gun-control laws as a whole, must be understood in terms of “the culture wars.” Zell Miller put it well in 2001, suggesting that debates about gun policy are “about values … about who you are and who you aren’t.” Drawing on work by Dan Kahan, Tushnet says that we might try to “shift our conversation away from polarizing debates about what the Constitution means and what sorts of gun policies actually reduce violence, and toward a respectful acknowledgment of the disparate visions of the good society that pervade American society.” With such a shift, we might fight less about guns and embrace a policy of putting lots of new police officers on the streets—a policy that actually works to reduce crime. And if we do need to reach a consensus on the gun question, we could imagine some reasonable alternatives. Perhaps most people could accept an individual right to own guns, while also accepting sensible restrictions on what guns individuals may use and how exactly they might use them.
Tushnet has provided a balanced, intelligent, and exceedingly useful guide to the Second Amendment. Unfortunately, he neglects a significant matter. How did the individual rights position, so marginal and even laughable among judges and lawyers for so long, come to be treated as a respectable view—and even to be described as the standard model by 2007? It is certainly relevant that the National Rifle Association, and other like-minded groups and individuals, have sponsored and funded an endless stream of supportive papers and research. The Second Amendment revolution has been influenced by an intensely committed social movement with political and legal arms. But it is also true that for many decades lawyers and law professors paid hardly any attention to the Second Amendment. Sanford Levinson, a well-known liberal legal scholar, produced the key paper in 1989, called “The Embarrassing Second Amendment,” which took the pro-gun position seriously. Levinson started a kind of academic avalanche, in which other scholars, with varying political positions, helped move the individual rights position from the margin to the mainstream.
Many of the historical treatments have been thin, result-oriented, and even embarrassing, at least from law professors, and they do not come to terms with the immense difficulties in capturing the original meaning of the Second Amendment. Tushnet’s discussion is neither embarrassing nor result-oriented, but it, too, is thin. For many constitutional problems, the founding-era discussions seem familiar, or at least familiar enough. Modern readers can easily find their way into the debates over the power to make war, the composition of the Senate, and the right to a jury trial. But to explore the original understanding of the Second Amendment is to enter an altogether different nation, whose central preoccupations were not at all like our own. In the founding era, many people were fearful of a standing army, and that fear was closely entangled with their support for the right to keep and bear arms. Indeed, it was the anti-Federalists—skeptics about the proposed Constitution—who were most insistent on the importance of the right to bear arms as a way of protecting state militias and thus checking the national government.
Some of those who wrote and endorsed the Constitution were highly ambivalent about those militias, and favored instead a national force, even a standing army. Charles Pinckney of South Carolina went so far as to say that he had little “faith in the militia.” The Constitution itself represented a compromise between national and state control, and the document’s advocates argued that the anti-Federalists were needlessly worried. In an important passage in The Federalist Papers, Madison argued that the fear of a standing army was baseless, on the ground that any such army would be badly outnumbered by “a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.” This passage is difficult to understand today. It is extremely hard to think our way back into a world in which standing armies seem a major threat to liberty and in which state militias are an indispensable safeguard.
Of course we have a National Guard, and states continue to authorize militias. About half of the states even maintain militias. But contemporary state militias are marginal institutions. (Do you know anyone who is in one? Do you know if your state has one?) No one thinks of them as important safeguards against the United States Army. In his impressive and illuminating book A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America, the historian Saul Cornell urges that if we really want to be faithful to the original understanding, we would have to recreate “the world of the minuteman,” a “nightmare” in which states would require all Americans “to receive firearms training” and “to purchase their own military-style assault weapons.”
To appreciate the centrality of state militias to the Second Amendment, consider an early draft of the amendment written by Madison: “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.” And to see just how radically the nation has changed, pause over this question: if contemporary Americans were writing a new constitution, would any sane person suggest this language? Sure, we could imagine a proposed “right to keep and bear arms,” but what are the rest of the words doing? Madison’s draft is unmistakably focused on the military; without that focus, it would be senseless to follow the “right to keep and bear arms” with an exemption for those with religious scruples. If the ratified Second Amendment is substantively identical to Madison’s draft, its core function might be (as suggested by Jack Rakove) merely to affirm “the essential proposition—or commonplace—that liberty fared better when republican polities relied upon a militia of citizen-soldiers for their defense, rather than risk the dire consequences of sustaining a permanent military establishment.” Thus in the debate in the House of Representatives over what became the Second Amendment, Elbridge Gerry asked, “What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.”
Saul Cornell concludes that the “original understanding of the Second Amendment was neither an individual right of self-defense nor a collective right of the states, but rather a civic right that guaranteed that citizens would be able to keep and bear those arms needed to meet their obligation to participate in a well-regulated militia.” And indeed, the very distinction between an “individual right” and a “collective right” seems foreign to the goals of those who ratified the Second Amendment. One of their central purposes was to declare a civic right that would also be part of a civic responsibility, founded in republican goals and connecting the role of citizen with the role of soldier. The anti-Federalists lost the key arguments, but they did think that the Second Amendment ensured that states could resist the national government, and this checking function did play a role in the founding debates.
We should be able to agree that, at a minimum, the national government could not abolish state militias or ban their members from carrying weapons. But such militias no longer serve anything like their old role. As some of the founders hoped and others feared, national defense is undertaken by a professional military, which is the equivalent of a standing army. And if the national government is really determined to oppress us, we won’t be much helped by pistols and rifles.
A most puzzling question, then, is how to “map” the original understanding, however it is specified, onto contemporary disputes. Consider the portion of the law of the District of Columbia that requires citizens to keep lawfully owned shotguns bound by a trigger lock. Suppose that a citizen objects that a trigger lock will interfere with his efforts at self-defense. What does that objection have to do with the Second Amendment as originally understood? The individual right to have guns, at least as conceived and pressed in the last decades, is best taken as a contemporary creation and a reflection of current fears, not as a reading of the civic-centered founding debates. Modern gun owners, invoking the Second Amendment on the basis of a principle that they favor, are not altogether different from older people who have tried (unsuccessfully) to invoke the Equal Protection Clause in order to strike down mandatory retirement laws. Indeed, the contemporary effort to use the Second Amendment to strike down gun-control laws is similar in many ways to the effort by civil rights lawyers to strike down laws mandating racial segregation, although those lawyers did not insist that their position was compelled by the original understanding of the relevant constitutional provision.
Invoking some historical sources, including the minority report from Pennsylvania, some gun advocates insist that a general right to self-defense against the national government and against criminals, and even a right to hunt, falls within the original understanding. Suppose they are right. What follows? If we discovered that according to the original understanding the Equal Protection Clause permitted racial segregation, would it follow that the Court would have to allow racial segregation? If we discovered that according to the original understanding the Privileges and Immunities Clause forbids minimum-wage laws, would it follow that the Court should strike them down? Justice Scalia likes to consult history, but he has described himself as a “faint-hearted” originalist, in the sense that he will not use the original understanding as an all-purpose weapon against long-established law.
As Tushnet suggests, gun-control advocates might well invoke settled practices, and apparently entrenched law, to uphold the laws that they favor. It is both true and important that well over two centuries after the founding, the Supreme Court has yet to recognize an individual right to bear arms. On the other hand, the Court’s decisions are not without ambiguity, and in recognizing such a right, the Court could distinguish its precedents, rather than overrule them.
Some people are drawn to judicial “minimalism,” and want to decide cases as narrowly as possible. (Chief Justice Roberts and Justices Alito, Breyer, and Ginsburg have shown minimalist tendencies.) Could we imagine Second Amendment minimalism? Even if it is agreed that the Second Amendment should be construed to protect individual rights, it does not follow that all, most, or many restrictions on gun ownership must be struck down. People have an individual right to free speech, but that right is not absolute. Courts allow governments to regulate obscenity, libel, bribery, criminal conspiracy, false commercial advertising, child pornography, and criminal solicitation. Even the minority report in the Pennsylvania ratification convention, much emphasized by advocates for gun rights, says that the right to bear arms can be overcome in the face of “real danger of public injury.”
It would not be difficult for judges to conclude that a “real danger of public injury” exists when those with criminal records seek to buy handguns, or when people get sawed-off shotguns, or when they do not agree to keep their guns in secure places at home. Judges who embrace minimalism would prefer to resolve Second Amendment cases in the following way: “We need not answer the disputed question of whether the Second Amendment confers individual rights at all. Nor need we specify the precise nature of any individual rights that might be conferred by that amendment. Even if the Second Amendment does confer individual rights, it is not violated by the restriction at hand. That restriction preserves the right to possess guns; it merely imposes a reasonable condition on the enjoyment of that right.”
An approach of this kind, now followed by many state courts under state constitutions that protect gun rights, would leave open the possibility that courts would invalidate the most draconian or severe restrictions on gun ownership, while also allowing the democratic process considerable room to maneuver. To be sure, some gun-control laws, including the law in the District of Columbia, are quite severe, and make a minimalist approach hard to implement. But even when confronting such laws, courts can rule in a way that leaves open many of the hardest questions.
Many people would like to reject a minimalist approach on the ground that Chief Justice Burger was essentially correct—that the legal materials, including the original understanding and the broader tradition, do not recognize an individual right at all. But whatever the founding generation may have thought, the Second Amendment has become a shorthand, or a rallying cry, for a deeply felt commitment on the part of tens of millions of Americans. There would be not merely prudence, but also a kind of charity and respect, in judicial decisions that uphold reasonable restrictions without rejecting that commitment, and without purporting to untangle the deepest mysteries about the meaning of the Constitution’s most mysterious provision.
Cass R. Sunstein is a contributing editor at The New Republic. He is the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration.