Triggering the Second Amendment: Lund v. Rosenthal

This afternoon, in honor of Constitution Day (and because the Byrd Amendment requires it), Case Western Reserve University hosted a debate between Professor Nelson Lund of George Mason University School of Law and Professor Laurence Rosenthal of Chapman University’s Fowler School of Law. The forum, “Triggering the Second Amendment: The Constitutionality of Gun Rights and Gun Control,” was recorded and will soon be available as a webcast.  Below the fold is my live-blog of the event.

Professor Lund, though a supporter of gun rights, was quite critical of the Supreme Court’s decision in District of Columbia v. Heller. He noted the opinion established two important principles. First, that the right to keep and bear arms is a private right of citizens, and not a right of states to organize the militia or National Guard. Second, the purpose of the Second Amendment is to protect the fundamental right of self-defense. These are important conclusions, but they do little to illuminate the scope of the underlying right or identify what sorts of gun control are constitutionally permissible. Further, Lund suggested, Justice Scalia’s opinion over-read the available historical materials and gave lower courts little guidance as to how to evaluate various gun control measures in subsequent cases.

On in Heller II, Lund noted, the D.C. Circuit adopted a reasonable approach to evaluating the constitutionality of gun control measures, but shrunk from applying it. As the Heller II majority concluded, most gun control measures should be subject that strike at the core right to self defense should be subject to strict scrutiny, while other measures limiting gun rights should be subject to intermediate scrutiny. The type of means-end fit required under either approach would seem to invalidate quite a few gun control measures, including those at issue in Heller II, but that’s not what the lower court majority did. Indeed, applying these tiers of scrutiny as they are applied in other contexts (i.e. the First Amendment) would be significantly more protective of gun rights than judges have been, including in Heller II.

Professor Rosenthal was also critical of the Supreme Court’s Heller opinion. If all that is relevant is the original public meaning of the Second Amendment, Professor Rosenthal noted, then the Amendment protects fairly robust right to maintain and carry (in case of confrontation) any arms that are in widespread civilian use. Yet Justice Scalia’s opinion in Heller seems to shrink from these implications, and suggests that many common limits on gun rights should be upheld. As Professor Rosenthal observed, this presents something of a conundrum. According to Professor Rosenthal, this concession and the pattern of post-Heller (and post-McDonald) lower court decisions can be understood as an acknowledgment of the full text of the Second Amendment, including the militia clause. This clause, Professor Rosenthal noted, contemplates regulation, and the benefits of such regulation should be balanced against the extent to which such regulation burdens the underlying right.

While Professors Lund and Rosenthal were both quite critical of Justice Scalia’s majority in Heller, they disagreed as to how the Second Amendment should be interpreted and applied. In particular, they clashed over whether it is appropriate to apply the Second Amendment in an analogous way to the First Amendment. Professor Lund viewed such an approach as appropriate, noting (among other things) the textual similarity in the operative clauses of each. Professor Rosenthal, on the other hand, disagreed, noting that First Amendment protection has been far more absolute, whereas Second Amendment rights should be construed in light of the purpose of the right and the tolerance for regulation of that right. Further, Professor Rosenthal noted, the historical understanding of the freedom of speech would allow for much greater restriction of gun rights than is currently accepted by the Supreme Court.

As to whether the history of regulating the right to keep and bear arms in England is relevant, Professor Rosenthal suggested this history shows that the right to keep and bear arms was understood as one that could be subject to regulation.  Professor Lund disputed this, noting that the “pre-existing right” protected by the Second Amendment was the right as it existed in the United States under the common law and state constitutions, not the right as it existed under English law.

Asked about the relevance of international law to the interpretation of the Second Amendment, Professor Rosenthal answered that international law does not shed much light on the meaning of the Amendment, but can and should inform policy discussions about what sorts of gun control are appropriate.

As for the practical implications of enforcing a robust Second Amendment right, both professors agreed that the effects are likely to be minor, but disagreed as to whether restricting the government’s ability to limit or prohibit handguns has a disproportionate effect on poor or crime-ridden communities.  Professor Rosenthal suggested that the ability to regulate guns would enable the police to keep communities safer, much as stop-and-frisk policies enable police in large cities to reduce crime, whereas Professor Lund noted that, by definition, where gun rights are limited, law-abiding citizens are (by definition) at the mercy of criminals who bear arms.  Even if limiting the scope of the Second Amendment would enable police to prevent some violent crimes, Professor Lund noted, this is not considered a sufficient basis to limit other constitutional rights, such as those protected by the First and Fourth Amendments.

Professor Rosenthal argued that it is difficult to balance liberty and order, and that how one conceives of that balance depends upon the context and community in which one lives.  According to Professor Rosenthal, the benefits of greater order and greater limits on gun rights are more substantial in crime-ridden communities than they may be in, say, Montana.  While the lack of gun control in Montana might not matter much, he suggested, the lack of gun control in urban centers leaves poorer communities at greater risk.  Preventing would-be criminals from owning guns prevents them from shooting people.

Professors Lund and Rosenthal agreed, at a broad level of generality, that gun control laws should be subject to a form of means-ends scrutiny under the Second Amendment.  Where they mostly disagreed was the severity with which such scrutiny should be applied.

[Note: As originally posted, I repeatedly referred to Heller II as the Heller remand.  This was sloppy on my part, and the post has been fixed.]