The Second Amendment: Three Key Principles

By 

David French

|

February 28, 2013

4 min read

Constitution

As the gun control debate rages, at the ACLJ we’re increasingly asked to comment on the constitutionality of gun regulations.  As the Supreme Court made clear in District of Columbia v. Heller, the right to “keep and bear arms” protected by the Second Amendment is an individual right, unconnected with service in a militia (the ACLJ filed an amicus brief in the case – in support of the individual right).

As welcome as that decision was, it hardly answered all the constitutional questions surrounding gun rights and gun control.  In fact, the Court explicitly acknowledged a role for state regulation.  As the lower federal courts are even now working to establish the limits of state regulatory authority over gun rights, and state and federal legislators are considering new laws, three principles should guide their decision-making:

First, the right of self-defense is a natural right of man that predates the Second Amendment and is the foundation for the Amendment itself.  The political philosopher John Locke, in his Second Treatise of Civil Government, put it this way:

Sec. 16. THE state of war is a state of enmity and destruction: and therefore declaring by word or action, not a passionate and hasty, but a sedate settled design upon another man’s life, puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other’s power to be taken away by him, or any one that joins with him in his defence, and espouses his quarrel; it being reasonable and just, I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the commonlaw of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power [emphasis added].

Second, because the right of self-defense is grounded in natural law and protected by the Constitution, the state bears a heavy burden for justifying limitations on that right.  In constitutional law, there is no such thing as an absolute right.  Indeed, not even the First Amendment right to freedom of speech – perhaps the right most widely supported in the United States – is unlimited.  For example, we don’t have a right to publish our troop movements, we can’t yell “fire” in a crowded theater, and we can’t use our right to speak to deprive someone else of their rights (by shouting them down, for example).  Yet to justify restrictions, the state often has to demonstrate that it has a “compelling interest” in the restriction, and the restriction is “narrowly drawn” to advance that interest. 

In practice, that is a very difficult burden for the government to carry.  At the ACLJ, we’ve struck down dozens of state regulations that infringe on First Amendment rights, and this country retains perhaps the world’s most robust marketplace of ideas as a result.

While the precise governmental burden will vary depending on the circumstances, when it comes to the right of self-defense, the government should always carry the burden of establishing not just the legitimacy of the government interest at stake but also how the regulation will advance that interest.  Simply put, we don’t “experiment” with our natural rights of man.

Third, the ideal government gun regulation is one that enhances the right of self-defense.  How can gun regulation enhance the right of self-defense?  Simple: By prohibiting ownership by law-breakers while protecting ownership by the law-abiding.  Background checks help limit ownership by law-breakers, while sentencing enhancements for gun crimes help keep violent criminals off the streets (and away from firearms). 

Yet that is exactly where our government fails the most.  Every year, many thousands of criminals attempt to buy guns by falsifying a background check, but they are rarely prosecuted.  To be precise, in 2009 the FBI reported more than 70,000 false forms, yet the Justice Department prosecuted only 77 people.  Indeed, under President Obama, federal prosecutors have brought fewer gun charges than they did under President Bush.

As the amount of gun ownership has increased in the U.S., gun crimes have actually fallen.  Guns are not the problem; armed criminals are the problem.

The government’s unwillingness to enforce existing and widely-supported gun laws is no justification for enacting additional regulations that will likely only impact those who are already complying with the law.