The gun crowd is so paranoid about the erosion of their Second Amendment rights that they make Chicken Little look like an actuary.
The president’s recent gun proposals include initiatives such as expanded background checks, a ban on certain military-type rifles, and limits on the size of magazines. But if you listen to the gun folks, even these tepid proposals are—to quote a past president of the National Rifle Association—“unconstitutional schemes to gut the Second Amendment.” Iowa Senator Charles Grassley accused Obama of thinking “the Second Amendment can be tossed aside.” Any skeptical glance in the direction of that Glock on their hip is worth a Second Amendment yelp.
These objections are overblown. There is little question that Obama’s current proposals would withstand constitutional review. (I was one of about 50 law professors who signed a recent letter saying just that.) The reason is that a constitutional right is not violated every time it is burdened. Sure, where the line is drawn between burden and violation is sometimes hazy. But as we debate the question with regard to guns, progressives can be confident—because the best arguments we have are the ones that conservatives have been using against us in the abortion wars for 40 years.
Let me back up for a moment.
The typical story of a constitutional right goes something like this. Stage 1: For a significant period of time, the right either doesn’t exist at all or only exists in narrow circumstances. The right to free speech, for example, was a sliver of its current self for most of the country’s history, generally thought only to prohibit the government from censoring newspapers or books before they were published. Punishing speech after the fact was fine and dandy, even if it meant that speech was chilled significantly.
Stage 2: The Supreme Court recognizes or drastically expands the right, usually in a situation where its exercise has been banned or prohibited outright. The best example here is Roe v Wade, in which the Court recognized the right to an abortion in ruling against a statute that made it criminal to perform one. Another example is the Court’s 2008 decision in District of Columbia v. Heller, which struck down a D.C. anti-gun ordinance that was the strictest in the nation, recognizing a personal right to “bear arms” under the Second Amendment. Both Roe and Heller articulated constitutional rights that had not been recognized before.
Stage 2 questions get the most ink. Next month’s Supreme Court arguments over marriage equality, for example, will consider whether states can ban same-sex couples from receiving a marriage license, and whether the United States can refuse to recognize same-sex marriages for purposes of federal benefits.
But the devil’s details of constitutional law are at Stage 3, where the contours and limits of the right are determined in thousands of concrete cases. No right is absolute; they are defined only in the context of myriad applications, and every right is subject to counterbalancing by public interests. In real life, constitutional questions do not usually arise because of some blanket prohibition, but around the burdens—sometimes slight, sometimes severe—of exercising it. Stage 3 is where courts, and constitutional law professors, spend most of their time. Are ID checks at a polling place a burden on the right to vote? The Supreme Court says no. Are limits on independent campaign expenditures a burden on free speech rights? The Court says yes.
We are just at the beginning of Stage 3 with guns. The gun advocates won a clear Stage 2 victory in Heller, but the Stage 3 battles about what constitutes an unconstitutional burden on gun rights are just beginning. These are fights progressives can still win.
I’m confident of future victories over guns because of past defeats over abortion. After losing at State 2 of the abortion fight, abortion opponents have amassed victory after victory in Stage 3. They have argued that a woman’s right to choose does not require the choice to be accessible or easy, and the Supreme Court generally agrees. It upheld Roe in the 1992 case Planned Parenthood v Casey, validating the Stage 2 victory. But it sowed the seeds of the Stage 3 defeats, saying that the abortion right would be violated only by “undue burdens.” Now, an undue burden is as rare as a decent Liam Neeson movie.
State legislatures have successfully imposed waiting periods, parental notification requirements, and bans on specific procedures. Some states simply make it difficult for clinics to operate by imposing a daunting array of regulatory obligations—Virginia, for example, regulates the width of clinic hallways. In four states—North and South Dakota, Arkansas, and Mississippi—only one abortion clinic is available. Oklahoma, particularly creative, passed a law several years ago protecting doctors who choose not to tell mothers when the fetus has birth defects. According to Time magazine’s recent cover story on abortion, “Getting an abortion in America is, in some places, harder today than at any point since it became a constitutionally protected right 40 years ago.”
As a constitutional matter, the argument was best made by Tony Lauinger, chairman of the anti-abortion group Oklahomans for Life, when his state passed the most aggressive forced ultrasound bill in the country: “The ultrasound law does not prohibit abortion. It regulates abortion.”
The same argument is available to gun opponents. The exercise of gun rights comes with risks to life, as abortion opponents assert about abortion. Burdens on the gun right can take these risks into account, as courts have upheld regulations that take into account the life of the fetus.
One thing we know for sure: As a constitutional matter, one could go much further in regulating firearms than anything currently proposed without coming close to imposing an “undue burden” on Second Amendment rights.Background checks and limits on the types and lethality of weapons are nothing compared to the severity and breadth of the limits on abortions. With guns, we could be discussing waiting periods, training and licensing requirements for gun buyers, strict liability for gun sellers, or a host of other restrictions. We can paraphrase the Oklahoma right-to-lifer and argue these rules would not prohibit guns but would regulate guns. And we could co-opt Bill Clinton’s aphorism about abortion: guns should be “safe, legal, and rare.”
Of course the real reason stricter gun restrictions are not on the table is political, not constitutional. But the Chicken Littles of the gun movement often use warnings of constitutional calamity as cover for their political mechanizations. No reason to let them.