Right to keep and bear arms and self-defense
VOLOKH at LAW.UCLA.EDU
Tue Jun 10 13:32:13 PDT 1997
Marie Failinger writes:
> I have been waiting for someone else to reply to this, but guess I will. .
> . Wouldn't a non-originalist argument be that if the right to keep and
> bear arms is simply the textual evidence for a larger right of
> self-defense, then the right to bear also implies the right to be
> protected against those bearing (another form of self-defense?) Thus, the
> government could uphold a requirement against concealed weapons on the
> basis of the rights of others whom the gun-carrier encounters.
This strikes me as a special case of what I refer to as the
"Constitutional Tension Method" -- the argument that constitutional
rights may properly be limited when they conflict with values
established by other parts of the Constitution, or in this special
case values established by the same part.
The argument sounds plausible, but I think only until one
considers the implications. Releasing someone who you have reason to
believe was wrongly acquitted may put others in "jeopardy of life or
limb." Releasing someone because of due process concerns may
interfere with others' rights to not "be deprived of life, liberty,
or property, without due process of law." Letting people threaten
boycotts of a television show because one of its journalists
supposedly said something racist, sexist, or homophobic in a sense
interfers with his "freedom of speech."
But of course we don't recognize such limitations on these
rights, because the right is to be free of government intervention
with speech, life, liberty, or property. The right is not a right to
some aggregate maximum of speech or security.
This is even more clear with the right to keep and bear arms.
I'm the first to admit that *all* private ownership of firearms in
some measure potentially jeopardizes "the rights of others whom the
gun-carrier encounters." This is true of possession in the home
(which can of course quickly lead to carrying, as well as
jeopardizing residents of the home, visitors, and neighbors) as well
as carrying, concealed or open.
It seems to me that the right to keep and bear arms for self-
defense must be seen as a judgment -- with which I tentatively agree,
based on the criminological data that I've seen, but which I realize
is controversial -- that allowing private firearms ownership is more
conducive to general safety than prohibiting it. (Note I say
"prohibiting it" rather than "having no private firearms ownership";
it's conceivable that having no private firearms ownership would be
the safest solution, but the authors of the amendments may have quite
properly realized that firearms bans will not eliminate all private
firearms ownership.) So long as that judgment is embodied in the
Constitution, I can't see how it can be trumped by contrary judgments.
> Conversely, wouldn't an originalist have to argue that the
> (federal) right
> defended is not self-defense against other individuals but against the
> government, and therefore regulations that are targeted at protecting
> non-armed non-government individuals do not violate the right? Do we know
> what the states intended by the right of self-defense (in terms of whom
> that right is against.)
It's not clear to what extent the federal right was intended as
protection against other individuals; but it's abundantly clear that
many -- at least 27, quite likely more -- of the state provisions are
precisely intended as protection against other individuals. These
are the provisions of which I've been speaking, and they're quite
explicit, generally referring to a person's right to keep and bear
arms in defense of himself and often also his home, his property, and
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