A large portion of this debate is centered around the perceived ambiguity of the Second Amendment.
“A well-regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
What exactly is its meaning and what – if any – limitations on the right are imposed? There are vocal minorities on both sides of the argument who are more than ready to explain in great detail why their interpretation of the Second Amendment is the right one. The simple fact, however, is that both sides should put a cork in it because the Constitution has clearly articulated exactly who gets to decide what it means. From Article III:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
So the Supreme Court gets to decide what the Second Amendment means. And decide they have. In Heller vs. D.C., the Supreme Court took a pretty definitive stance on the meaning of the Second Amendment. Specifically, Heller held (among other things):
“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
Pretty neat package, eh? The decision goes on to deal with that confusing militia reference in the first part of the Second Amendment by stating:
“The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”
So, while gun rights advocates certainly have a lot to cheer about in the Heller case, it’s not all rainbows and butterflies. Notably, the Court acknowledged that the Second Amendment does not confer an unlimited right and is subject to reasonable restrictions:
“Like most rights, the rights conferred by the Second Amendment are not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
So citizens have an individual right to keep and bear arms, but that right is not unlimited and can be circumscribed by laws. In a stroke of the pen (or computer keyboard), the Supremes both eliminated existing ambiguity and created a new one in the interpretation of the Second Amendment. They have established a continuum of sorts, with ‘no rights’ at one end and ‘no restrictions’ at the other.
We know that we don’t fall at either extreme, but exist somewhere in the middle with the balance between rights and restrictions a constantly changing landscape depending on where we happen to live and what events have recently transpired.
To understand how these changes are driven, it’s helpful to understand Social Contract Theory. Social Contract Theory was formally proposed in the seventeenth century, but has antecedents in Greek and biblical antiquity. The concept of the Social Contract as espoused by Thomas Hobbes and John Locke predates the Constitution by more than 100 years. The basic premise states that:
“Members of society are accorded certain rights in return for giving up certain freedoms society’s members would otherwise possess in the state of nature (where lawlessness reigns) or by remaining alone (as Robinson Crusoe). Society (in the sense of a “state”) emerges to enforce the rights and responsibilities borne by its members. Because these rights and responsibilities are neither “natural” nor “fixed,” they can be altered should a society’s members so desire. However, they must remember that exercising additional rights will always entail bearing additional responsibilities, and bearing fewer responsibilities will always entail exercising fewer rights.”
What does this mean in terms of gun ownership? Simply that all people have natural, inalienable rights including the right to protect themselves using any means necessary. This is the right that’s enshrined in the Second Amendment.
Provided these people remain in nature, these rights remain without restrictions. However, once people decide to leave the state of nature and join a community, the collective will of the members of the community can restrict the exercise of these rights by its members. Those who disagree with the restrictions are free to leave the community, but if they stay, they are expected to conform to the community’s standards.
Social Contract Theory then explains the variation in gun rights between the several states. People in, say, Massachusetts have, through their elected leaders, decided that they wish to live under a more stringent gun control regime than people in New Hampshire. This makes sense, in theory, as the closer government is to the people, the more that government reflects the people’s wishes.
A state government can better represent the wishes of its residents than a national government can simply because the state government must satisfy the needs of a smaller and less diverse group.
There are two basic problems with this principle. First, our governmental system is founded on the principle of majority rule with protection of the rights of the minority. This means that no matter what the state wants to do, it can only go so far. Any attempt to restrict the right to keep and bear arms past a certain point is subject to litigation as New York state will likely find out the hard way.
Secondly, a person may move to a state with more permissive laws. If the state later decides to increase restrictions, it’s not reasonable to expect the residents who object to vote with their feet. Some accommodation must be made. This, by the way is the basis for the grandfathering provision in many laws – it enables the state to tighten rules without fearing a court challenge.
Beyond these operational concerns, there’s a larger consideration. The whole concept of the Social Contract hinges on the ability of society to provide something of value in exchange for the rights given up by the individuals who choose to live in that society. Do the increased firearm restrictions imposed on Massachusetts residents result in safer communities? People who have to live in some of the rougher areas south of Boston might disagree that they’ve made things any safer for them and their families.
This then is the first issue with the Social Contract. Are the enhanced protections real or merely theoretical? If they’re only theoretical, then society has failed to honor its side of the bargain and shouldn’t expect individuals to honor their side.