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Tuesday, February 03, 2009

What is the Second Amendment for?

Thanks to Dan for inviting me back on Prawfsblog. I thought I would devote the first half-dozen or so posts to a topic I have spent some time on recently – the purpose, or purposes, of the Second Amendment.

Under the collective-right interpretation, the Second Amendment exists to allow states to create organized militias, as a bulwark against federal military power. But in District of Columbia v. Heller, the Supreme Court embraced the idea that the Second Amendment protects individual interests in private arms possession, interests unrelated to state militia service. My question is – what are these interests?

I do not think this question was answered in Scalia’s opinion in Heller (although I’d be happy to be convinced otherwise). It is not enough to say, as Scalia does, that the right to bear arms is tied to a right of self-defense. For that doesn’t tell us what interest stands behind the right of self-defense, and how that interest is connected to private arms possession.

Consider, for example, the following argument for a right of self-defense: The impulse to engage in self-defense in cases of imminent violence is so strong that if self-defense were prohibited by the government, people would defend themselves anyway. No threat of sanction is sufficient to stop people from defending themselves. Since a government can require people to do only what they can do (ought, as they say, implies can), the government cannot require people to refrain from self-defense.

One nice feature of this argument is that it suggests that the right (or, more accurately, the excuse) of self-defense is inalienable: I cannot promise to refrain from engaging in self-defense when faced with imminent violence, because I know I will be unable to abide by my promise when I’m threatened.

But there is no reason to think that this inalienable right of self-defense justifies a right to bear arms. To be sure, people probably have an overwhelming impulse not merely to engage in self-defense, but also to grab whatever weapon is at hand to defend themselves. So the government probably should excuse anyone who, in the course of self-defense, uses a weapon lying nearby (or, like MacGyver, creates a weapon on the spot). But that does not mean that the government must excuse people for keeping weapons for use in self-defense. After all, it is not true that our impulse to possess weapons is so great that no threat of sanction would lead us to give them up. People can be coerced to disarm. So there is no relationship between this right of self-defense and the Second Amendment.

Of course, there may be arguments for other rights of self-defense that could justify a right to bear arms. The problem with the justification above (which is the second that I discuss in my article) is that the right of self-defense is unrelated to the protection of innocent life. Self-defense is protected only because the impulse to engage in it is overwhelming, not because it makes us safer. A right of self-defense that is tied to safety, one might argue, can justify a right to bear arms. 

I’ll discuss the safety argument for the Second Amendment in later posts. But it is a striking fact that Scalia’s opinion does not answer the fundamental question of whether the Second Amendment protects our interest in safety or an autonomy interest that is valuable even if its protection increases our vulnerability to violence.  (At least I cannot find him addressing this issue.) The academic literature on the Second Amendment has not been helpful either.

Clarity about the purpose of the Second Amendment is necessary for any principled reasoning about its scope – including the looming question of whether the right to bear arms is incorporated into the Fourteenth Amendment and so applicable against the states. 

As we’ll see later, I think the safety argument has problems (unrelated to the empirical question of whether private arms possession does indeed make us safer). Although the "excuse" argument above fails, autonomy arguments for the Second Amendment are the most promising, not the least because they make the Second Amendment more like other provisions in the Bill of Rights. The Fourth Amendment, for example, is commonly understood as protecting our interest in privacy, which has value even though its protection increases our vulnerability to crime. The Second Amendment might be similar. I’ll explore a number of possible autonomy arguments in subsequent posts.

Posted by Michael S. Green on February 3, 2009 at 01:42 PM in Constitutional thoughts | Permalink

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Please identify a passage in Scalia's opinion in Heller where he makes it clear that it is our interest in *safety* that the Second Amendment protects

Scalia notes that policy justifications are not pertinent to the constitutional question, and Breyer addresses the empirical studies submitted to the Court that focus on deterrence (more guns, less crime). The arguments about safety were before the Court and may have influenced it:

JUSTICE SOUTER: Can we also look to current conditions like current crime statistics?

MR. GURA: To some extent, Your Honor, but
certainly seen a lot of -

JUSTICE SOUTER: Well, can they consider the extent of the murder rate in Washington, D.C., using handguns?

MR. GURA: If we were to consider the extent of the murder rate with handguns, the law would not survive any type of review, Your Honor.

JUSTICE SCALIA: All the more reason to allow a homeowner to have a handgun.

MR. GURA: Absolutely, Your Honor.


In any event, you seem to be arguing that autonomy precedes safety rather than the other way around. One can exercise autonomy only in a safe space; guns guarantee a safe space to exercise autonomy. You cannot fully participate as a citizen in society if others may subject you to private mob violence; others cannot subject you to private mob violence if you shoot them dead with your gun.

Posted by: Jack Krevins | Feb 4, 2009 4:15:14 PM

Jack - Please identify a passage in Scalia's opinion in Heller where he makes it clear that it is our interest in *safety* that the Second Amendment protects, rather than an *autonomy* interest in private arms possession.

I'm surprised how many Second Amendment advocates such as yourself ignore the autonomy justification for the Second Amendment, since the autonomy approach holds out the promise of justifying the Second Amendment even if it is true (as many gun control advocates claim) that a system of private arms possession makes us more vulnerable to private violence.

In general the Bill of Rights is not about making us safe, but about protecting rights that individuals have against the government despite their social costs. It is because protecting these rights has these costs that the rights need to be constitutionally protected. Since legislatures tend to be worried predominantly about questions of public safety, the rights would be too vulnerable if their protection were left up to majoritarian processes.

Posted by: Michael Steven Green | Feb 4, 2009 3:49:55 PM

it is a striking fact that Scalia’s opinion does not answer the fundamental question of whether the Second Amendment protects our interest in safety

The people protect their interest in safety. With guns.

Posted by: Jack Krevins | Feb 4, 2009 3:06:28 PM

Christopher - I said that there is no reason to think that THIS inalienable right of self-defense (namely the one I described in my first post) justifies a right to bear arms. THIS right of self-defense is based on excuse, and I stand by my claim that it does not justify a right to bear arms. (You've certainly given me no reason to think I'm wrong.) I will discuss later whether other conceptions of a right to self-defense can do better.

Posted by: Michael Steven Green | Feb 4, 2009 12:49:15 PM

Michael Steven Green: "But there is no reason to think that this inalienable right of self-defense justifies a right to bear arms. To be sure, people probably have an overwhelming impulse not merely to engage in self-defense, but also to grab whatever weapon is at hand to defend themselves."

The writer is not able to see the forest of common sense, for all the trees of academia. How can one have an inalienable right to self-defense while being denied any real means to effect it? To grab whatever weapon is at hand IS to defend oneself. To say otherwise is to ignore the myriad of scenarios in which a disparity of force renders unarmed self defense mute.

Justice Scalia's widely hailed, scholarly opinion in Heller vs. D.C. is deeply rooted in the common law, our own history, the the language of the Second Amendment as it was understood at the time of our founding. And yes, it is deeply rooted in common sense.

Heller vs. D.C. is a very good read. May I suggest it for Michael Steven Green? Here, in small part, is what the Harvard Law review had to say about it:

"Justice Scalia’s landmark ruling merits our attention for its method
as well as its result. Behold: a constitutional opinion that actually
dwells on the Constitution itself!"

http://www.harvardlawreview.org/issues/122/nov08/amar.pdf


Posted by: Christopher Hoffman | Feb 4, 2009 12:08:19 PM

Alice - I agree that there is definite Hobbesian element to this "excuse" argument for a right of self-defense (and right to bear arms). But there is, I think, one big difference. The result of the excuse argument is that the state has a duty not to punish self-defense, whereas a truly Hobbesian argument would not put on the state any such duty. A Hobbesian argument would show only that citizens are permitted (in the sense of having a Hohfeldian privilege) to engage in self-defense, while the state would remain permitted to punish self-defense. I haven't yet looked at your article, so I'm unsure whether you would agree.

Posted by: Michael Steven Green | Feb 3, 2009 10:17:36 PM

Very interesting questions. I'm especially curious to see your account of the autonomy arguments, and what you think Locke adds to Hobbes on this score. I tend to think Hobbes is a better resource for those who want to defend the normative claim that defending oneself from imminent violence is a good thing (not just an amoral feature of human wiring). Hobbes sticks to his guns (so to speak) in ways that Locke does not -- to the point that Hobbes defends a right to resist punishment. (See: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1255102)

At any rate, I look forward to hearing more.

Posted by: Alice Ristroph | Feb 3, 2009 2:58:27 PM

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