Well-Regulated Militias, and More

Michael Pollak mpollak at panix.com
Wed Oct 27 23:02:00 PDT 1999


[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



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