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Abstract
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The debate over the meaning of the Second Amendment has focused primarily on a first-order question: does the amendment protect an individual right to bear arms or a collective right of states to maintain militias free from federal interference? At least since the 1939 Supreme Court decision in United States v. Miller, the federal courts have tended to read the Second Amendment in accordance with the collective rights approach. In recent years, however, the individual rights view -- which claims that the amendment guarantees individuals the "right to possess firearms for personal self-defense and the defense of others" -- has gained considerable support among academics and courts alike. While far from fully displacing the collective rights view, the individual rights approach to the Second Amendment is an ascendant challenge to the prevailing collective rights model.
There is, however, a second-order Second Amendment question that may be equally important to the future of gun control: assuming that federal courts recognize the individual right to bear arms, what standard of review would apply? Some traction on this question may be gained by looking to the states, where the individual right to bear arms is already widely recognized. Forty-two states have constitutional provisions guaranteeing an individual right to bear arms, and there have been hundreds of cases at the state level challenging all types of gun control. The state constitutional doctrine on the right to bear arms is well developed and remarkably consistent across jurisdictions, providing a valuable window into what a future Second Amendment doctrine might look like.
How does state constitutional doctrine treat the right to bear arms? The most prominent feature of the state law in this area is the uniform application of a deferential "reasonable regulation" standard to laws infringing on the arms right. This standard is extremely deferential to state legislative efforts to control weapons and, under this standard, the vast majority of gun control regulations are upheld. The reasonable regulation standard does have its limits; laws (or their application to specific individuals) found to be arbitrary or to amount to a complete denial of the right to bear arms have been invalidated. Such rulings are rare, however, and state courts use their oversight authority over the arms right sparingly. Judicial review in this area is limited to guarding against extreme, unfair, or nonsensical governmental action relating to guns and does not create any significant hurdles to gun control.
If the federal courts adopt a reasonable regulation standard of judicial review - which state consensus on this point makes likely, though certainly not inevitable - then the triumph of the individual rights view of the Second Amendment will have only a marginal impact on the constitutionality of firearms regulation.
The state experience indicates that the vast majority of laws burdening the Second Amendment right to bear arms are likely to withstand judicial scrutiny under deferential reasonableness review. Laws that effectively abolish the right to possess a firearm (by, for instance, banning their transportation in all circumstances) or are applied in extraordinary factual circumstances that give rise to a sense of arbitrariness may be called into question. But outside of those narrow areas, an individual right to bear arms does not generally interfere with gun control. The Second Amendment may receive a second look, yet if the federal courts follow the uniform practice of the states in applying the deferential reasonable regulation standard, few laws are likely to run afoul of the individual right the Amendment is read to protect.
Some individual rights proponents seem to recognize this and support the individual rights reading in large part for its symbolic or expressive effect. According to Calvin Massey, "recognition of a limited individual right to gun possession, however, would allay the fear of gun enthusiasts (or shooters, as they generally prefer to be called) that the ultimate aim of gun control advocates is to stamp out private gun possession." To be sure, if the Second Amendment is interpreted to guarantee an individual right to bear arms, then a move to a British-style society with almost no lawful gun possession would be unconstitutional. Yet, such a move is nowhere near being politically feasible in America anyway. If this is all that gun enthusiasts can expect from a revised Second Amendment, then their victory will be almost entirely symbolic. Reasonable regulations - meaning almost all gun control laws - are likely to remain constitutionally permissible. |