Legal Commentary

In an influential article three decades ago, Larry Sager argued that some individual rights were ?underenforced constitutional norms.? By this, Sager meant that the courts did not provide judicial protection for a right up to that right?s conceptual limits. The standard reasons were institutional: preserving legitimacy, avoiding areas of unmanageability, and economizing resources. Myself and others have suggested that this may be a helpful frame for understanding the right to bear arms. If one believes the Second Amendment guarantees an individual right to keep and bear arms unrelated to militia service, the conclusion seems inevitable that the right to bear arms is underenforced. After all, the federal courts don?t even currently recognize this individual right. Yet.

But is the right to keep and bear arms really ?under?enforced? Arguably not ? or at least, not very much. Consider that, despite the dormancy of the Second Amendment, at least forty-two states have provisions in their own constitutions guaranteeing an unambiguous individual right. These provisions are the subject of a considerable amount of litigation, and there are hundreds of state court decisions on the (state) constitutionality of almost every conceivable form of gun control. Due to the breadth of state recognition of the arms right, there are only eight states and the federal government currently ungoverned by a judicially protected individual right to bear arms. Most of us enjoy the right to keep and bear arms in our states regardless of the Second Amendment, limiting the extent of noncompliance.

Of course, the federal government and eight states being ungoverned by a right to bear arms does suggest some less than optimal level of enforcement. But how much less? Would a Second Amendment right to bear arms radically change the number and type of gun safety laws in these jurisdictions? It could be that most, if not all, federal gun laws will remain constitutionally permissible. The Ashcroft Memorandum, which famously shifted the Department of Justice?s view and adopted the individual-rights reading of the Second Amendment, insisted that the Department ?can and will continue to defend vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws.? In other words, all federal laws already comport with right-to-bear-arms principles.

In measuring underenforcement, one must factor in the level of compliance with the underlying norm by the political branches. If there are few legislative intrusions, there is little enforcement for the courts to undertake. The absence of judicial enforcement of the Second Amendment could be the result of political respect for the constitutional right. In the U.S., where gun rights advocates are relatively influential political players, gun possession laws have generally, if not always, been reasonable burdens designed for public safety. The vast majority of my students, when polled, believe the Second Amendment protects an individual right to bear arms. Gun rights advocates have been effective in defining the Second Amendment in the Constitution outside of the courts, breeding broad compliance with the arms right norm.

Some rights are, no doubt, underenforced. Yet even a right that is not recognized in the federal Constitution may not be ?under?enforced, if the right is enforced through some other mechanism, such as state constitutions or the political process. The right to bear arms may be fully enforced.