Citation

Massey C. Wash. Lee Law Rev. 2000; 57(4): 1095-1138.

Copyright

(Copyright © 2000, School of Law, Washington and Lee University)

DOI

unavailable

PMID

unavailable

Abstract

Reading the Second Amendment as securing an individual right to self defense does not mean that this right is absolute. In my view, only material infringements of the right ought to trigger the presumption of invalidity that places on the government the burden of justifying the infringement. Many forms of gun regulation or prohibition would likely not constitute material infringements. When a material infringement is established, the government should be required to justify its infringement by proving that the infringing regulation, in purpose and effect, is substantially related to the achievement of a compelling objective. This hybrid form of heightened scrutiny, "semi-strict" scrutiny, if you will, would protect the individual right of armed selfdefense while still allowing the state a reasonable and practical opportunity to curtail arms possession when there is clear public necessity for doing so. The occasions for finding such public necessity present may be more frequent than gun enthusiasts would prefer, or they may be less frequent than gun opponents would prefer. That is a battle left for elsewhere.

A possible unintended benefit of this approach is that it might lessen the antagonism of the gun debate. In their fear that gun regulators are all secretly bent upon gun confiscation, gun enthusiasts often gravitate toward absurdly strong claims of firearms entitlement and adamant opposition to even sensible, and, in my view, constitutionally permissible firearms regulations. By recognizing that there is a constitutional right to individual ownership of firearms some of this fear, which may or may not be irrational, will be reduced. Of course, gun opponents who really do desire the absolute elimination of private possession of firearms will be utterly dismayed by such a development. I can only suggest to them that simply because a "right" is constitutionally protected does not mean that it is a good idea to exercise it. Consider hate speech. We should all hope for, and work toward, the day when neither hate speech nor firearms are culturally relevant. In the meantime, we have a Constitution to tend and respect. Just because the Constitution does not always deliver our preferred outcome does not mean that we should stop caring for it.