January 30, 2003

I don't want to get into the issue of gun control itself -- it is not an issue I really care about. Constitutional Law, on the other hand, is a hobby of mine.

Some have said that the 2nd Amendment is not being treated equally with the 1st. I believe that if the 2nd really were treated equally with the 1st, gun owners would not be at all happy.

I firmly believe in the principles of inalienable rights, but that does not mean that you can always fully exercise those rights. A fundamental aspect of this model of rights is that there are times that one person fully exercising his rights can prevent another from fully exercising his. This does not mean that anyone loses those rights but that compromises must be found which allow everyone to exercise those rights to the greatest degree possible. The classic example is yelling fire in a crowded theater. Governments with laws and courts are created largely for the purpose of facilitating these compromises.

The 1st Amendment guarantees freedom of assembly, yet it is well accepted constitutional principle that this does not mean that the government cannot restrict when and where you assemble or the government cannot require you to pay fees for things like crowd control. As long as the government regulations do not prevent you from getting a reasonable venue for your assembly, these regulations are not unconstitutional. (In a ruling that actually expanded the interpretation of the right to assemble, this limitation was expressed in Hague v. CIO (1939): "The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.")

Similarly, it has been established that lobbyists can be required to register without interfering with their free speech right. In United Stated v. Harriss (1954), the Court agreed unanimously on this in the sense that the three dissenters would have struck down the law as too vague but accepted that a more narrow law as construed by the majority was constitutional.

Assume for the moment that we ignore the "militia" clause and give the broadest meaning to "bear arms" and thus presume that the 2nd Amendment dictates a personal right to possess or own any weapon. If the principle above is applied to guns, it is fine to regulate guns as long as we do not prevent them from being owned. It is clear that licensing of gun owners and requiring tracking all gun sales/transfers is perfectly constitutional as long as it does not prevent you from having guns.

Can a particular kind of weapon or weapon-attribute be banned? You might argue that the right to bear arms only means that some sort of arms must exist that you can own, but the broad interpretation of the 2nd Amendment above leads more naturally to a conclusion that all weapons must be allowed. If some weapons can be banned, where do we draw the line? The few words in 2nd Amendment give no guidance. How could the framers have meant there to be a line drawn without even hinting at where to draw the line? This contradiction leads us to conclude that all weapons must be allowed. Build your own nukes. Raise your own anthrax. Of course, there are few who would really interpret the 2nd Amendment so broadly. Mathematically, you would say "proof by contradiction". Somewhere here the 2nd Amendment must have been interpreted incorrectly. For this and other historical reasons I find that the 2nd Amendment cannot be interpreted this broadly. Without getting into a whole treatise, I find the most appealing interpretation to be that the 2nd Amendment grants states the power to arm whatever people with whatever weapons the state chooses, written in order to counteract the far reaching meaning in Article I Section 8 Clause 16 combined with Article VI Clause 2 and in the absence of the 10th Amendment -- which together many at the time read as prohibiting the states from providing arms to their own militias.

That does not mean that any particular scheme for regulation of guns is a good thing, but debating those schemes gets beyond the constitutional issues that interest me.

Richard M. Mathews

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