Preface

The following excerpt is reprinted with permission from the March 1996 issue of Reason Magazine. Copyright 1999 by the Reason Foundation. (Daniel D. Polsby, "SECOND READING: Treating the Second Amendment as normal constitutional law").

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First, the language of the Second Amendment itself invites one to differentiate between arms that can be kept and borne (i.e., carried) and other arms. This is not the sort of difference that could support a regulatory or legislative distinction, like the "assault weapons" provisions in the 1994 Omnibus Crime Act, between functionally equivalent firearms based on such cosmetic attributes as possession of a pistol grip, flash suppressor, or bayonet lug. But it would make sense of a distinction between rifles, shotguns, and pistols on the one hand and hydrogen bombs on the other. So as a first cut at the problem, one might say that infringement in the constitutional sense does not occur when a statute or regulation imposes burdens on possession of weapons other than those that militiamen might be expected to bring ("bear") into the field with them when summoned from their homes.

It might also make sense to allow legislatures to recognize that in certain circumstances firearms constitute a special danger. One thinks in particular of saloons: Perhaps guns and alcohol do not mix, just as (according to the laws of many states and communities) naked dancers and alcohol don't mix. This sort of limitation on the bearing of arms does not readily emerge from constitutional history or text. It would be defended simply on prudential grounds, the thought being that it is implausible that the right to keep and bear arms would be the only constitutional right not subject to some kind of rule of reason. Though philosophical firearms enthusiasts--like journalists, pornographers, and other single-issue partisans --tend to understand the term right quite absolutely, anyone interested in preserving a system of political and civil rights that impinge and abut on one another will have to take a more refined view of the matter.

We allow the state to regulate the time, place, and manner of speech, or acts (like burning one's draft card) that are heavily laden with speech-like (that is, communicative) content--but we allow this regulation only subject to an all-important qualification. It must not discriminate on the basis of a communication's content, and it must be no more expansive than necessary to accomplish its purpose.

Regulating the speech of Democrats more restrictively than that of Republicans, or allowing anti-abortion posters in a certain public place while forbidding abortion-rights posters, would not be regulation that was neutral in its attitude toward a constitutionally protected value. It would be censorship--a pretextual act inherently hostile toward that value. Even formally neutral regulation could disclose such hostility if it exceeded what was necessary to accomplish a proper purpose. For example, if a municipality banned all public speech whatsoever to preserve public peace and quiet (in itself a perfectly licit end), courts would say this action, though formally quot;neutral," was too broad to be sustained.

The Second Amendment should be seen as analogous. There would be no "abridgement" if regulation were aimed at the time, place, and manner in which firearms are used. The community has a legitimate interest in seeing to it that arms are not kept or borne negligently. It might well be permissible to pursue this interest by insisting that those who keep and bear arms receive adequate education, on the firing range and in the classroom, to assure the responsible exercise of this right. Such a law would not be invalid unless it appeared that it was being utilized pretextually--like the extravagant "literacy tests" that Jim Crow voting registrars in the South used to impose on black voters--to subvert or disparage that constitutional right. Any government burden on "the right of the people to keep and bear arms" must have an important purpose and must be justified in spite of, and not because of, its tendency to discourage the keeping and bearing of arms.

Firearms regulations should be subject to the heightened scrutiny that courts reserve for impositions on other fundamental rights, which means that serious and skeptical consideration will be given to the claim that regulation is necessary, that the means chosen correspond to that claim of need, that the state interest is a very important one, and that the regulations are no more extensive than they have to be to address that interest. As with any civil right, the burden of persuasion should remain with the proponent of legislation that restricts or burdens the right to keep and bear arms, rather than, as with ordinary legislation, on the opponent. But a public policy of simply discouraging people from owning or using firearms is not, in and of itself, a constitutionally permissible objective, any more than discouraging people from religious observance would be permissible to some future, oh-so-progressive government that considered religion as hopelessly declasse progressives nowadays consider the right to keep and bear arms. Thus the Los Angeles Police Department has behaved unconstitutionally by refusing, over a period of many years, to exercise its statutory discretion to issue carry permits, because the department didn't think it a good idea for people (other than police officers) to carry guns around. And any statute or regulation that burdens the right to keep and bear arms on the ground that guns are a public health hazard should enjoy the same frosty reception in court that would be given to a statute or regulation that burdened the free exercise of religion as a mental health hazard.