Don’t forget the preamble!

Guest post by Lawrence Rosenthal

The tragic shootings at Sandy Hook Elementary have produced not only a national debate about firearms violence, but also a national debate about constitutional law. Overhanging the latter debate is the Second Amendment to the U.S. Constitution: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

With Adam Winkler of the UCLA School of Law, I coauthored a chapter of JHU Press’s Reducing Gun Violence in America: Informing Policy with Evidence and Analysis, edited by Daniel W. Webster and Jon S. Vernick, addressing the constitutional status of firearms regulation. Although many claim that the Second Amendment confers a largely unlimited right to possess and carry firearms, our chapter explains that there is a long tradition of robust firearms regulation in America. This should come as no surprise, since those who claim expansive Second Amendment rights usually ignore the Amendment’s preamble and, in particular, its reference to a “well regulated Militia.”

As the United States Supreme Court explained in its leading opinion interpreting the Second Amendment, District of Columbia v. Heller, when the Second Amendment was crafted, the term “militia” did not refer to the members of a formal paramilitary organization, but instead the whole of the citizenry thought capable of bearing arms. Thus, under the Second Amendment, all adults qualified to own firearms were to be “well regulated.” This explains the long tradition of firearms regulation in the United States; regulation, rather than infringing on Second Amendment rights, is entirely consistent with the constitutional scheme. In the Heller case, the Court struck down a prohibition on the possession of handguns on the ground that it infringed on a core constitutional interest in self-defense, but this approach implies that a variety of regulations that impose more modest regulatory burdens should be sustained. Moreover, Heller’s treatment of the term “militia” means that regulatory power extends beyond formal military organizations and reaches all those qualified to own or carry firearms. Indeed, since Heller, the lower courts have upheld the vast majority of challenged firearms laws throughout the country. For that reason, Professor Winkler and I conclude that the regulations most frequently proposed in the wake of Sandy Hook are likely to be found constitutional.

To be sure, many argue that firearms regulation is ineffective; that it amounts to a “purposeless restraint on liberty” and should be invalidated for that reason. A great deal of material in the new JHU Press collection effectively refutes that claim. In my own scholarship, I have used the experience of New York City as an example of the efficacy of gun control. To study gun control, one must examine not only the laws on the books, but also how they are enforced. New York combines strict gun laws with an aggressive system of patrol targeting “hot spots” of crime. Because New York strictly regulates firearms, police can intervene whenever that have reasonable suspicion that an individual is carrying a firearm unlawfully. This approach has been enormously successful in reducing levels of violent crime in New York beyond the reductions experienced in other comparable cities.

The experience of New York should remind us of one additional reality of firearms violence. As a statistical matter, firearms violence is concentrated in impoverished, disproportionately minority big-city communities. The fact that the benefits of firearms are diffuse, but their costs are concentrated in a relative handful of communities, does much to explain why the political process is usually so hostile to firearms regulation; most legislators represent districts that do not experience the bulk of the costs of firearms-related crime. This also explains why mass shootings in low-crime suburban areas such as Newtown, Connecticut or Columbine, Colorado so unsettle the ordinary lines of political battle. If Newtown is the beginning of a new era in the politics of firearms crime, it will likely be because it represents an example when the costs of firearms violence are experienced outside of the communities that ordinarily pay the price for lax firearms regulation. The Second Amendment, however, does not explain the laxity of so much of our current regime of firearms regulations. To the contrary, its preamble represents a textual commitment to regulation found nowhere else in the Bill of Rights. In short, when we discuss the right to keep and bear arms, don’t forget the preamble.

Webster_ReducingGunViolenceLawrence Rosenthal is a professor of Law at Chapman University and the coauthor, with UCLA School of Law Professor Adam Winkler, of Chapter 18: “The Scope of Regulatory Authority under the Second Amendment” in Reducing Gun Violence in America.

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