BY APRIL FARRIS
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Second Amendment interpretation and the future of gun control laws in America were the focus of a September 27th debate between Harvard Law Professor Mark Tushnet and Clark Neily, a senior attorney at the Institute for Justice. The event, sponsored by the Harvard Federalist Society, came in response to the expected certiorari grant for Parker v. District of Columbia- the March case where the U.S. Court of Appeals for the D.C. Circuit struck down Washington D.C.’s controversial gun ban.
Neily, who served as co-counsel for the plaintiffs challenging the ban, explained that while some view the Second Amendment as a “collective right,” the view that the Second Amendment protects a right of individuals to own guns is likely to prevail. He explained that most legal scholars on the subject support the individual rights theory, and that efforts to advocate the “collective rights” theory appear hypocritical.
“There has been a remarkable diversion to individual rights theory by professors, even liberal ones,” Neily said. “Guns are not a big part of my life, but it bothers me when an entire part of the Constitution can be written out when you apply a constitutional theory that liberals would never apply to a right they actually care about. If you imagine the right at stake is one you care about a lot. I think you’ll be offended to see a court take it as lightly as they take the Second Amendment.”However, Tushnet explained that there is support for the collective rights theory in the wording of the Constitution. The “militia,” he said, could likely be referring to the National Guard.
“The primary but not insurmountable difficulty with the individual rights theory is the preamble phrase in the Second Amendment mentioning the well-regulated militia.” Tushnet said. “There are two other references to the militia in the original Constitution which clearly refer to the state-organized militia, so natural reading would be to say that the term “militia” in the second amendment also refers to the state-organized militia. The gun-control argument is that the preamble in the Second Amendment is a condition on the right. It identifies the contours of the operative portion of the second clause.”
According to Neily, even a reading permitting gun ownership for militia purposes would not prevent citizens from owning guns due to the true definition of a well-organized militia. Rather than interpreting the “militia” to refer to the National Guard, a concept the federalists would have hated since it would have looked “too much like a standing army,” Neily interprets the use of the word “militia” to refer to the unorganized militia.
“All able-bodied men from 17 to 44 are in the unorganized militia, and that’s exactly what was meant in 1792,” Neily said. “They actually called out the unorganized militia during World War II. When the unorganized militia is called, you’re supposed to bring your own gun. You’re actually required to bring your own gun. That’s what the word well-regulated meant.”
In addition to discussing the Constitutional theories behind the amendment, the speakers addressed what Tushnet described as the “bazooka problem”- the questionable usefulness of a privately-owned firearm in protecting against an oppressive government with large-scale superior weapons not contemplated at the drafting of the Second Amendment.
Tushnet explained this problem by discussing the two primary purposes people see in the Second Amendment– self-defense and protection from tyrannical government.
“If we’re talking about self-defense, handguns work for that,” Tushnet said. “The other purpose we mentioned earlier is to guard against an overreaching government. If that is the purpose of the Second Amendment, the “bazooka problem” really is a serious problem. If the function is that you can resist the government and the government has tanks, then it’s not clear what use you’re getting out of a handgun.”
Although this will be one of the few cases on record concerning the Second Amendment, Neily said he is optimistic that the individual rights theory will prevail if Parker v. District of Columbia is granted certiorari, as the quality of reasoning from lower-court opinions supporting that theory has been far superior to court reasoning which attempts to justify the collective rights approach. While this case may be paramount for determining which theory the Supreme Court will use, Neily said the ruling probably won’t affect most gun control laws in the country.
“Most gun laws on the books are constitutional within any reasonable explanation the Supreme Court is likely to give,” Neily said. “There may be a lot of cases filed, but I don’t think many laws will be struck down.”