Keeping and Bearing What (and When and Where)?

In DC v Heller, the Supreme Court has quite forcefully (and rightly, I think) made two arguments concerning the 2nd Amendment to the Constitution, the most fundamental law of the United States.  First,it guarantees a right possessed by individuals, and not by “the people” as a collective entity.  Second, what the Amendment specifically protects is the possession and carrying of firearms.

     Let me repeat that, just so there is no confusion.  SCOTUS says, and I agree, that the 2nd Amendment guarantees to individual citizens the right to possess and carry firearms.

     Any interpretation of the 2nd Amendment must begin with the understanding that the Amendment does not create, nor does it define the right to keep and bear arms.  The Founders viewed this as a natural (or, as some would prefer, God-given) right.  All the 2nd Amendment does is reference this right and provide a reason for giving it Constitutional protection.  But it tells us nothing about the scope of this right, i.e., about just what sorts of keeping and bearing are protected.

     This issue of scope is discussed briefly in DC v Heller, but the Supreme Court has yet to attempt a substantial account of just what this right protects.  The need for such can be seen if we consider the 1st Amendment protection of the right to freedom of speech.  The 1st Amendment uses language that is just as absolutist at the 2nd:  government “shall make no law…abridging the freedom of speech.”  Yet the law prohibits all sorts of speech with little or no controversy:  fraud, perjury, threats, slander, and so forth.  The right to freedom of speech may not be abridged, but it simply does not extend to, and thus does not protect, these sorts of speech.  There is a wealth of Supreme Court jurisprudence on the scope of the right to freedom of speech, and yet there are still questions that arise.

     The Supreme Court’s Heller decision recognizes the need for an account of the scope of the right referenced in the 2nd Amendment.  That they don’t attempt one is largely due to the fact that they find DC’s law so restrictive that it would fail any reasonable interpretation of the 2nd Amendment.  (SCOTUS will usually, though certainly not always, make the narrowest decision possible, so as to minimize political consequences.)

     This account will be largely an exercise in historical and philosophical investigation:  what was the generally accepted understanding of this right at the time the Amendment was adopted (history), and how can we understand and apply that right here and now (philosophy)?  That this right may not be infringed does not mean that it is unlimited in scope; some kinds of keeping and bearing may fall outside the scope of this right, just as some kinds of speech fall outside the scope of the right to freedom of speech.  Likewise, that its inclusion in the Constitution is justified by the need for a militia does not mean that service in a militia is the only kind of keeping and bearing that is protected.

     A final note:  there was considerable regulation of firearms at the time of the founding.  There was no serious effort to do away with most of these regulations for decades, and when there was, it seldom had anything to do with the 2nd Amendment.  (Prior to Heller, the Supreme Court had provided very little interpretation of the 2nd Amendment.)  Concealed carry was outlawed in places, on the theory that you were up to no good if you felt the need to conceal your weapon.  Prohiitions on carrying firearms in public were not uncommon.  Figuring out exactly what the founders were trying to protect with the 2nd Amendment will be no easy task.