[Wisdom from the mushy center of real constitutional law professors]
NEW YORK TIMES EDITORIAL
October 28, 1999
Well-Regulated Militias, and More
By LAURENCE H. TRIBE and AKHIL REED AMAR
O ur Constitution, envy of the world, is made of currency too
valuable to be spent reinforcing preconceived conclusions.
Yet both sides in the gun control debate have done just that with
the Second Amendment. Partly as a result, we have reached an
impasse. The House-Senate committee addressing the issue remains
deadlocked, as the White House acknowledged this week.
Most advocates of gun control have argued that the "right to bear
arms" can reach no further than the Second Amendment's preamble,
which calls a "well-regulated Militia . . . necessary to the
security of a free State." They conclude that the amendment shields
only state militias like today's National Guard from Federal
authority. According to these people, the rights of individuals to
self-defense or to private gun ownership are not constitutionally
protected at all. But the Second Amendment reference to the
people's "right" to be armed cannot be trumped by the Amendment's
preamble. Besides, the 14th Amendment, which makes parts of the
Bill of Rights applicable to the states, reflected a broad
agreement that bearing arms was a "privilege" of each citizen.
Those on the other side have been even more intransigent --
opposing controls of any kind, with the possible exception of laws
keeping convicted felons from acquiring guns. The gun lobby has
argued that Second Amendment clearly protects "the right of the
people to keep and bear arms," which they regard as giving every
citizen a nearly absolute right to own guns for private pursuits
like hunting and target shooting.
The truth is more complicated. Almost no right known to the
Constitution is absolute and unlimited -- not even the rights of
free speech and religious exercise. Thus, it has been a terrible
mistake for both sides in the gun control controversy to insist
that the Second Amendment bans virtually everything or virtually
nothing.
The fact is, almost none of the proposed state or Federal weapons
regulations appears to come close to offending the Second
Amendment's core right to self-protection. The right to bear arms
is certainly subject to reasonable regulation in the interest of
public safety. Laws that ban certain types of weapons, that require
safety devices on others and that otherwise impose strict controls
on guns can pass Constitutional scrutiny.
It is often argued that any regulation of weapons, however modest
and sensible, places us on an inescapably slippery slope that can
only end in the confiscation of all guns in private hands. This is
precisely the kind of all-or-none thinking we should reject. As a
matter of constitutional logic, to uphold reasonable regulations is
not to say that no right exists, or that anything goes.
As a matter of practical politics, a great majority of Americans
seems to favor reasonable regulations but oppose wholesale
confiscation. If gun-control advocates conceded that some
regulations might indeed go farther than the Constitution permits,
they might earn the confidence of those who are frightened that the
Second Amendment will otherwise be reduced to a cipher.
Conversely, gun control critics would have greater credibility if
they dropped their insistence that virtually no restrictions are
permissible. Sometimes, the truth -- both constitutionally and
democratically -- lies at neither extreme.
Laurence H. Tribe is a professor of constitutional law at Harvard
University. Akhil Reed Amar is a law professor at Yale University.
Copyright 1999 The New York Times Company