by Darrell A. H. Miller, Professor of Law, Duke University
* May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.” The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald. How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.
Earlier this week, the Supreme Court denied certiorari in Drake v. Jerejian. The question there was “[w]hether the Second Amendment secures a right to carry handguns outside the home for self-defense.” When the Court does consider this issue, and if it decides the case according to conservative judicial principles, the answer should be no. Whether it will reach this conclusion is another matter.
Although Clayton Cramer, David Kopel and this author have used analogies to obscenity in disparate ways to illuminate the right to keep and bear arms, a home-bound Second Amendment doesn’t depend on these analogies. Instead, a home-bound Second Amendment follows from some traditionally conservative propositions: courts should define rights at the narrowest level of historical consensus; courts should not intervene when the political branches are working properly; and courts are institutionally ill-equipped to deal with empirical data and should defer to other institutions in data-driven disputes.
Despite claims to the contrary, the historical record on the public bearing of weapons is marked by ambivalence, not consensus. The consistent thread from antiquity through the seventeenth, eighteenth, and twentieth centuries is disagreement as to whether arms should be permitted in public, and widespread regulation, and even prohibition, of the practice. Given this ambivalence, conservatives typically argue that the decision should be made on the narrowest point of historical agreement. A right to have a firearm in the home, as well as a corollary right to bear that firearm incidentally for purchase, service, and use in an emergency, is the narrowest point of historical agreement. Whether guns should be permitted elsewhere is a matter for the citizens to decide among themselves.
Limiting the Second Amendment to the home doesn’t criminalize public carry. As Georgia’s “guns everywhere” bill shows, many citizens want more guns in more places. Georgia’s choices may be sound or unsound, but at least Georgia gun owners, police officers, university officials and moms had a chance to weigh in. In most cases, a person doesn’t have to check with a neighbor with respect to what goes on in the person’s home. But, as Justice Stevens suggested in McDonald v. City of Chicago, your liberty interest ends where my liberty interest begins. Democratic deliberation and accountability is how a well-ordered society typically resolves these competing claims to liberty, and it should be the same here.
Finally, public carry raises empirical questions that the judiciary cannot handle, and that may be irrelevant. Whether public carry makes people better off, or worse off, or neither, is sharply contested. The data may not be uniform throughout the country. Perhaps public carry makes people better off in Tempe but not in New Orleans. It certainly won’t be uniform over time. Concealed carry in the nineteenth century was understood to be a menace; concealed carry in the twenty-first century is frequently seen as a public good.
But to call something a constitutional right essentially is to say that the data doesn’t matter. It doesn’t matter how dangerous having (or not having) a gun is to a person at home—it is her right take the risk. Public carry (or lack thereof) externalizes the risk onto us all, but not in the same way, and not uniformly. Conservative judicial philosophy says that there needs to be a space where the data matters, and that space is traditionally public.
There is a strong conservative case for a home-bound Second Amendment. Not a partisan conservative case, but a truly philosophical conservative case. Whether it will prevail remains to be seen.