What the Second Amendment Really Says About Arms Control

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A customer looks over weapons for sale at the Pony Express Firearms shop in Parker, Colorado, on December 7. In a 2008 decision, the Supreme Court held that the Second Amendment conferred an individual right to “keep and bear” firearms. But no right is unlimited, the author writes. Rick Wilking/Reuters

The dean of my law school is Tom Campbell, a former Republican congressman from California. He ran for the U.S. Senate in 2010.

Tom was leading in the polls when he was asked, in a Republican debate, whether those on the terrorist no-fly list should be able to buy guns. He said no, thinking it was an easy question. It was, but he gave the wrong answer, at least according to his critics.

Advocates of so-called firearms rights demonized Tom. One of them, Carly Fiorina, soon vaulted to victory in the Republican primary. Yet, she lost the general election to Barbara Boxer. Even so, Fiorina is running for president today, still trumpeting firearms rights.

Why are people thought too dangerous to fly permitted to buy guns? The answer usually given is the Second Amendment: "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."

In its 2008 decision in District of Columbia v. Heller, the Supreme Court held that the Second Amendment conferred an individual right to "keep and bear" firearms. As the Heller opinion acknowledged, no right is unlimited, including the Second Amendment. In fact, Heller contains a back-door endorsement of firearms regulation.

To explain why Second Amendment rights are not limited to members of a formal military organization, the court observed that when the Second Amendment was written, the "militia" meant not an organized paramilitary unit, but all those thought capable of exercising firearms rights. It follows that all those who invoke Second Amendment rights can be "well regulated."

Indeed, there is a long history of firearms regulation in this country, directed at those thought to pose undue risks to public safety.

In the wake of the American Revolution, for example, those thought loyal to Britain were denied firearms rights.

In the early 19th century, new regulations emerged in response to what were then regarded as unreasonable risks.

Southern states banned carrying concealed weapons, on the view that those who engaged in concealed-carry were probably up to no good. Open-carry was often allowed, although, as the historian Saul Cornell has suggested, this was likely because it was thought essential that whites remained armed as long as slaves were around. In the north, carrying firearms was often flatly banned. This rule later spread to frontier towns facing waves of firearms violence.

Similarly, prohibitions on the possession of firearms by convicted felons became common in the 20th century, reflecting the view that felons, if armed, represented unreasonable threats to public safety.

This history of firearms regulation reflects a hard but sensible constitutional lesson: a "well regulated" militia is one that does not permit high-risk individuals to have guns. Surely that includes those reasonably suspected of involvement in terrorist activity.

Last week, the Senate rejected a proposal by Sen. Dianne Feinstein to bar those reasonably believed by the attorney general to be seeking firearms to commit terrorist acts from purchasing firearms. The Second Amendment was repeatedly cited in the debate over this proposal. A well-regulated militia, however, does not include enemies of the state.

To be sure, terrorist watch lists are imperfect, but the Feinstein proposal permits judicial review of decisions to prevent suspected terrorists from obtaining guns, placing the burden of proof on the government. This is prudent, prophylactic regulation characteristic of a "well regulated militia."

The Feinstein bill is only a first step toward a comprehensive response to the reality that terrorists can obtain guns all too easily.

The gun-show loophole needs to be closed. The underground market that enables criminals to avoid background checks needs to be shut down as well. Congress should require all transfers of guns proceed by background check, and severely penalize those who evade this requirement.

The Feinstein bill, however, is a sensible first step.

Justice Robert Jackson memorably wrote in 1949 that the Bill of Rights is not "a suicide pact." So it is with the Second Amendment. It contemplates regulation, not firearms anarchy. Today, however, we have too much of the latter, and too little of the former.

Lawrence Rosenthal is a professor of law at Chapman University Fowler School of Law in Orange, California. His article, "The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control," recently appeared in the Washington University Law Review.