Civil Libertarians & Gun Control

District of Columbia v. Heller (07-290), the “DC guns case,” considers whether the second amendment confers an individual right beyond the state’s collective interest in a “well regulated militia.” The case is interesting not only because it is the first time since 1939 (U.S. v. Miller) that the Supreme Court has attempted to articulate the scope of the amendment, but also because the second amendment continues to trouble the meaning of civil libertarianism. Is a person who fights for First Amendment freedoms but favors a handgun ban for reasons of public safety a true civil libertarian? More directly, does the second amendment rise to the same level of importance as other, more notable individual rights? Some scholars believe that the second amendment is no different than other bill of rights amendments. What do you think?

It is worth noting that the support for the parties in the DC guns case has not been drawn along political lines as neatly as would be expected on gun control issues. For example, the Bush administration has distanced itself from the second amendment and Respondent Heller. Jack Balkin, of Balkinization, explains that the DC guns case may forever change the rhetoric that politicians and courts use to discuss gun rights. At the same time, some of my colleagues at the ACLU are inclined to support the handgun ban because of legitimate fears over handgun violence here in the DC area.

Maybe the most interesting aspect of this case is the possibility that the Supreme Court will create a new individual right to bear arms. Were the Court to take such a bold and activist step, then civil libertarians who view the second amendment as somehow subservient to the others would certainly have some explaining to do.

Editor’s note:  Welcome to our new blogger!

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4 Responses to Civil Libertarians & Gun Control

  1. laurabethnielsen says:

    I have been thinking more lately about the individualized notion of rights. If the supreme court declares that we have individual rights to have guns it will lead us down a difficult road. do youthink it is likely, new blogger?

  2. ianto94 says:

    The court would not be creating a new right to keep and bear arms, it would be affirming the right. And Laura, why would you think this would lead us down a difficult road? 48 states now have some sort of law to allow the carrying of weapons, with some 35 having laws requiring officials to issue a concealed weapons permit to qualified individuals.

  3. laurabethnielsen says:

    “Affirming” or “creating” a right is an interesting issue, though often politically motivated wordplay. I say “creating” in this context for a couple reasons.

    One is for the rights-theory reason that I was referring to in my first comment. I don’t believe that rights are things that exist somewhere out there. I also don’t believe they come from God in some sense. And, I don’t think they spring obviously from a document like the constitution.

    As a sociologist, I think rights are socially constructed in an on-going way. That does not mean they are meaningless. Indeed the opposite — as a lawyer, I recognize that they are powerful mechanisms for making claims in our society. I have a “right” to something is a lot more powerful than I “want” or “prefer” something.

    So, in some sense I think courts are always creating rights (yes, even Roe vs Wade and other cases whose holdings are very important to me).

    The second reason I say “create” here is that to date there has not been a supreme court recognized, constitutionally-based, individual right to bear arms. Yes, the states have the laws and that is precisely what is at issue in the case (as I understand it). Does an individual have an individual right to have a gun (meaning, to be free from state interference from a federally protected individual constitutional right)?

    We have not had that in the past — the supreme court’s interpretation of the second amendment (as our poster points out) has recognized it as a right of the states vis-a-vis the federal government. To have a militia. You might think it is obviously there in the text and I would disagree, but not on a semantic parsing of the constitution, but based on a social constructivist conception of rights themselves.

    The reason I think this change would be hard from a policy perspective is because it would recognize a right that then we would have to figure out how to limit (as you point out has been happening in the states) because I am sure we agree that mentally ill and violent people shouldn’t have them – right? And, since I think gun violence is a serious problem in our society and that law might be an effective tool for combatting it, a court-recognized/affirmed/created individual right will make it harder for what I consider to be good policies about trigger locks, storage rules, permits, background checks, and the like. So, that’s just a policy point.

  4. geoff2o0o says:

    LB–very interesting discussion about rights creation. As for the likelihood that the respondent in this case prevails and the Supreme Court creates a new individual right to bear arms, I would say it is pretty slim.

    The Justices are concerned about clogging the lower courts with lawsuits and delaying pending litigation on gun charges. Were there to suddenly be a new right for criminal defendants to fall back on, tons of cases would be appealed, remanded, etc. and that’s the last thing the Supreme Court wants.

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