Sunstein on the Second Amendment

Cass Sunstein has a great lecture on the Second Amendment. It’s one of the few times I’ve seen someone attempt to make an honest and sympathetic assessment of both sides of the Second Amendment debate. And I also found it one of the most compelling explanations of the pro-gun-control interpretation of the Second Amendment. In a nutshell, Sunstein argues that the Second Amendment was primarily about hostility toward standing armies, and the importance of an armed and organized citizenry to resist standing armies that become tyrannical. That’s obviously not the gloss that modern-day gun rights activists put on it.

With that said, I was struck by the extent to which constitutional interpretation becomes an exercise in indulging one’s political prejudices. Once we acknowledge that the historical understanding of a constitutional provision is out of step with the modern world, that by no means offers a clear answer about what to do about it. A lot of anti-gun folks want us to conclude, in essence, that since the Second Amendment’s literal original meaning isn’t relevant today, that we should simply ignore it altogether. But that’s not how we interpret any other provision of the Bill of Rights. For example, the literal meaning of the First Amendment’s establishment clause is a prohibition on Congress creating an official national church. Yet the courts have (correctly, in my view) taken this language an expanded it into a general principle that the state may not use its authority to help or hinder any particular religious views. Similarly, the Fourth Amendment doesn’t say anything about wiretapping, a technique which relates to a technology that hadn’t been invented yet. Yet the Supreme Court has (again, correctly, in my view) adopted a relatively expansive view of the amendment’s text, holding that violations of privacy that are analogous to a search or a seizure are subject to the Fourth Amendment’s requirements.

By the same token, even if the literal meaning of the Second Amendment isn’t very relevant today, it’s far from obvious that that means we should simply interpret it in a way that renders it effectively meaningless. With almost every other provision of the Bill of Rights, the courts have adopted an expansive individual rights view of its text, even in cases where a literal reading might support a narrower interpretation. It’s a little hard, for example, to accept the notion that “penumbras and emanations” from the Fourth Amendment give us a right to birth control and abortion, but that the Second Amendment has no such penumbras and emanations related to an individual right to own firearms. The Second Amendment (along with the Fifth Amendment’s takings clause, perhaps) is the only amendment that has been read so narrowly as to offer no protection at all for an individual right.

What’s going on here, I think, is largely that people tend to read their policy preferences into ambiguous constitutional texts. So people who support gun control on policy grounds will naturally find narrow readings of the amendment more compelling, while gun rights activists will naturally find broader readings more intuitive. In fact, Sunstein makes this all but explicit when he compares the constitutional claims of the gun rights movement to the constitutional arguments of the gay rights movement for gay marriage. Sunstein says he finds the moral claims of the latter more compelling, and therefore finds their positions more plausible. Obviously, there are a lot of conservatives who see things the other way around.

To his credit, Sunstein does end his talk by arguing that the courts should strive to come up with a narrow ruling that does its best to respect to the deeply held convictions of gun rights activists. It’s not clear exactly how he thinks the court can square this circle, but it’s good that he’s at least cognizant of the fact that there are a lot of sincere people on both sides of the issue, and that both perspectives deserve a degree of respect.