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The Second Amendment: Much Ado about Little

New York Times Supreme Court reporter Adam Liptak has thrown new light on the long-simmering battle over the Second Amendment's true meaning and import in a fascinating October 21 front-page piece. Liptak, who deftly took over the Times' Supreme Court coverage from the recently-retired and much respected Linda Greenhouse, points out that the text is anything but crystal clear: "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." The meaning of the amendment has become so controversial that even some prominent conservatives have an issue with the Supreme Court majority that recently came down, ostensibly, on the conservative side of the gun-control issue.

Does the Second Amendment protect the right of only state militias to stock weapons for use, as appropriate, in emergency peace-keeping operations, or may individual citizens rightfully posses arms as well? A back-and-forth gun rights shouting match has ensued, from the days of minutemen to the cold-dead hands of the late Charlton Heston. Yet few have realized the futility, or at least the lack of necessity, of this debate. An interpretation of the Amendment as protecting an individual right hardly means that "gun control" is unconstitutional. It is not the end of the world: Boston, New York City, and Los Angeles are not about to replicate the gun-slinging towns immortalized in John Wayne movies.

Some conservative judges and academics, Liptak reports, have criticized the Supreme Court's 5-to-4 decision to strike down a D.C. handgun ban in District of Columbia v. Heller.  The hypocrisy, critics say, in Justice Antonin Scalia's majority opinion articulating a protection of the individual's right, is that the high court's right-leaning bloc is taking the very same subjective approach to constitutional interpretation for which they attacked the left for decades (in, for example, the abortion arena). This judicial activism, they claim, substitutes personal views for the meaning intended by the Founders, and, more importantly in this instance, substitutes the justices' views for those of state and local governments. By extension, this method of constitutional interpretation improperly confers powers on unelected judges rather than on the elected representatives of the citizenry.

In this titanic Second Amendment battle, the thinking has been that if the Constitution protects the individual's right to bear arms, then gun control must be unconstitutional. The Heller opinion, obviously aimed at settling the question once and for all, appears not to have done so - proving that the culture war between right and left has become so useful to both sides that any attempt to move forward is promptly rejected - even by some of the ostensible victors, since they are more desirous of continuing the war than of winning a long-and-hard-fought battle. However, the dispute, vitriolic though it has gotten, is truly an artifact of the culture war, and not a serious academic or constitutional dispute.

Let's assume, for argument's sake, that the Supreme Court majority is correct, and that the Second Amendment protects the right of the individual to possess, even to use, firearms. (This happens to be my view of the meaning of the text, but, as I'll make clear in a moment, it hardly matters with regard, ultimately, to the issue of the constitutionality of gun control legislation.) What impact would such an interpretation have on the power of federal, state, and local governments to enact legislation controlling, even limiting, the exercise of that right? Answer: very little.

Consider another cherished American liberty unquestionably protected by the Bill of Rights - freedom of speech: "Congress shall make no law...abridging the freedom of speech." [emphasis added] On its face, the First Amendment is absolute - "no law" may interfere with this freedom. (As the late Justice Hugo Black, a near-absolutist with regard to First Amendment interpretation, famously asked prosecutors and attorneys general arguing for an exception in, for example, obscenity cases: "What part of ‘no' can't you understand?")

Yet there are, and have always been, recognized exceptions to "no law." Legislatures have long outlawed, prosecutors and police have long made arrests for, and courts have long punished defendants for purveying "obscenity." Breaches of classification laws in the national security arena are deemed criminal, deserving of long prison sentences under the espionage statute. And speech, regardless of content, may be punished because of the time, place or manner of its delivery. For example, touting a candidate for public office by blaring through a bullhorn at three o'clock in the morning in a residential neighborhood may be core political speech, but it is also against the law ("disturbing the peace") under the circumstances. And, of course, you can't shout "fire" in a crowded theater. The details of how and where a constitutional right is exercised dictate the difference between protected activity and commission of an offense.

Thus, even if (as has now been held by the high court) the Second Amendment protects the right of individuals to bear arms, that right may be restricted and conditioned by reasonable regulation - gun control statutes and ordinances. So the Supreme Court's majority's resolution of the Second Amendment's meaning makes perfect sense - there is an individual right to bear arms, but reasonable regulation is likewise constitutional. Both liberals and conservatives should stop arguing about this long-running battle in the culture war and get on to more important and substantive issues. It's time to stop arguing over how many guns can be balanced on the head of a pin, and by whom. The constitutional gun control battle is over, and all that remain are the details that will be ironed out, case by case, by municipalities, states, and the lower state and federal courts in the years to come.

Now can we please get on to the truly urgent constitutional and other battles that remain?

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