ADVERTISEMENTS

Thanks to Dan for inviting me back on Prawfsblog. I thought I would devote the first half-dozen or so posts to a topic I have spent some time on recently ? the purpose, or purposes, of the Second Amendment.

Under the collective-right interpretation, the Second Amendment exists to allow states to create organized militias, as a bulwark against federal military power. But in District of Columbia v. Heller, the Supreme Court embraced the idea that the Second Amendment protects individual interests in private arms possession, interests unrelated to state militia service. My question is ? what are these interests?

I do not think this question was answered in Scalia?s opinion in Heller (although I?d be happy to be convinced otherwise). It is not enough to say, as Scalia does, that the right to bear arms is tied to a right of self-defense. For that doesn?t tell us what interest stands behind the right of self-defense, and how that interest is connected to private arms possession.

Consider, for example, the following argument for a right of self-defense: The impulse to engage in self-defense in cases of imminent violence is so strong that if self-defense were prohibited by the government, people would defend themselves anyway. No threat of sanction is sufficient to stop people from defending themselves. Since a government can require people to do only what they can do (ought, as they say, implies can), the government cannot require people to refrain from self-defense.

One nice feature of this argument is that it suggests that the right (or, more accurately, the excuse) of self-defense is inalienable: I cannot promise to refrain from engaging in self-defense when faced with imminent violence, because I know I will be unable to abide by my promise when I?m threatened.

But there is no reason to think that this inalienable right of self-defense justifies a right to bear arms. To be sure, people probably have an overwhelming impulse not merely to engage in self-defense, but also to grab whatever weapon is at hand to defend themselves. So the government probably should excuse anyone who, in the course of self-defense, uses a weapon lying nearby (or, like MacGyver, creates a weapon on the spot). But that does not mean that the government must excuse people for keeping weapons for use in self-defense. After all, it is not true that our impulse to possess weapons is so great that no threat of sanction would lead us to give them up. People can be coerced to disarm. So there is no relationship between this right of self-defense and the Second Amendment.

Of course, there may be arguments for other rights of self-defense that could justify a right to bear arms. The problem with the justification above (which is the second that I discuss in my article) is that the right of self-defense is unrelated to the protection of innocent life. Self-defense is protected only because the impulse to engage in it is overwhelming, not because it makes us safer. A right of self-defense that is tied to safety, one might argue, can justify a right to bear arms. 

I?ll discuss the safety argument for the Second Amendment in later posts. But it is a striking fact that Scalia?s opinion does not answer the fundamental question of whether the Second Amendment protects our interest in safety or an autonomy interest that is valuable even if its protection increases our vulnerability to violence.  (At least I cannot find him addressing this issue.) The academic literature on the Second Amendment has not been helpful either.

Clarity about the purpose of the Second Amendment is necessary for any principled reasoning about its scope ? including the looming question of whether the right to bear arms is incorporated into the Fourteenth Amendment and so applicable against the states. 

As we?ll see later, I think the safety argument has problems (unrelated to the empirical question of whether private arms possession does indeed make us safer). Although the "excuse" argument above fails, autonomy arguments for the Second Amendment are the most promising, not the least because they make the Second Amendment more like other provisions in the Bill of Rights. The Fourth Amendment, for example, is commonly understood as protecting our interest in privacy, which has value even though its protection increases our vulnerability to crime. The Second Amendment might be similar. I?ll explore a number of possible autonomy arguments in subsequent posts.

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