Around the world, national theologies are crumbling: communism, apartheid and, here in America, the worship of guns -- to foreigners, the single craziest thing about us. Do you sense an outbreak of sanity about gun control? I do. There was retired Chief Justice Warren Burger preaching sacrilege on the cover of Parade magazine a couple of weeks ago. A Time Magazine/Cable News Network poll reports that 87% of gun owners themselves favor a seven-day waiting period for handgun purchases; three-quarters favor registration of semi-automatic weapons and handguns, and half favor registration of rifles and shotguns. Unfortunately, there is the Second Amendment to the Constitution: "A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." Most right thinkers take comfort in that funny stuff about the militia. Since the amendment's stated purpose is arming state militias, they reason, it creates no individual right to own a gun. That reasoning is good enough for the ACLU. But would civil-libertarians be so stinting about an amendment they felt more fond of? Say, the First? The purpose of the First Amendment's free-speech guarantee was pretty clearly to protect political discourse. But liberals reject the notion that free speech is therefore limited to political topics, even broadly defined. True, that purpose is not inscribed in the amendment itself. But why leap to the conclusion that a broadly worded constitutional freedom ("the right of the people to keep and bear arms") is narrowly limited by its stated purpose, unless you're trying to explain it away? A colleague says that if liberals interpreted the Second Amendment the way they interpret the rest of the Bill of Rights, there would be law professors arguing that gun ownership is mandatory. The most thorough parsing of the Second Amendment is a 1983 article in the Michigan Law Review by Don Kates, a gun enthusiast. Kates expends most energy demonstrating that at the time of the Bill of Rights, all able-bodied men were considered to be part of the "militia" and were expected to defend the state if necessary. I'm not sure this is as clinching an argument as Kates seems to think. The fact that once upon a time everyone was a member of the militia doesn't prove that everyone still has a right to a gun even after the composition of the militia has changed. But Kates has other bullets in his belt. The phrase "right of the people" appears four other times in the Bill of Rights (including the First Amendment). In all these other cases, everyone agrees that it creates a right for individual citizens, not just some collective right of states as a whole. Kates also marshals impressive historical evidence that the Second Amendment, like other Bill of Rights protections, was intended to incorporate English common law rights of the time, which pretty clearly included the right to keep a gun in your home for reasons having nothing to do with the militia. If there is a good reply to Kates's fusillade, the controllers haven't made it. Of course the existence of an individual right to own guns doesn't mean that it is absolute. What are the limits? In the Supreme Court's one 20th-Century treatment of the Second Amendment, it held somewhat ambiguously in 1939 that sawed-off shotguns aren't necessarily protected by the Constitution without proof that they are the kind of weapon a militia might have used. Working from that decision and the common law, Kates says the amendment's protection should be limited to weapons "in common use among law-abiding people," useful for law enforcement or personal defense, and lineally descended from weapons known to the Framers. (No nuclear bombs.) He adds that they must be light enough for an ordinary person to carry ("bear"), and even that they can't be especially "dangerous or unusual." He says that the amendment places no limit on mandatory registration or laws against concealed weapons in public. This list seems quite reasonable and moderate, though where it all comes from is not clear. In suggesting, for example, that it would be fine to ban automatic rifles but not semi-automatics, Kates is slicing the constitutional salami pretty thin. But in what I suspect was the main purpose of his exercise -- establishing that a flat ban on handguns would be hard to justify under the Constitution -- Kates builds a distressingly good case. The downside of having a Bill of Rights is that the protection of individual rights usually entails social costs. This is as true of the Second Amendment as it is of the First, Fourth, Fifth and Sixth. The downside of having those rights inscribed in a Constitution, protected from the whims of majority rule, is that they can't be re-defined as life changes. It would be remarkable indeed if none of the Bill of Rights became less sensible and more burdensome with time. Talking and writing are as central to American democracy as they ever were; shooting just isn't. Gun nuts are unconvincing (at least to me) in their attempts to argue that the individual right to bear arms is still as vital to freedom as it was in 1792. But the right is still there.
Columnist Michael Kinsley notes a recent poll that shows even a majority of gun owners favor a waiting period for handgun purchases and the registration of semi-automatic weapons and handguns. He also cites an article by Don Kates on the Second Amendment which expounds on the "militia" and the "right of the people". At the time of the Bill of Rights, all able-bodied men were considered part of the militia. Today, an individual's weapons should be light enough to carry ("bear"). He sees no Constitutional restrictions to mandatory registration or laws against concealed weapons in public.