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Constitutional Visions for the Arms Right

By on November 18, 2020 Categories: ,

The National Constitution Center’s recent Constitution Drafting Project convened scholars and practitioners from three different camps to draft and define their own revisions to the U.S. Constitution: the Libertarian Constitution, Conservative Constitution, and Progressive Constitution. Of course, there are many things that separate these three visions of what a more ideal Constitution would look like, but one notable fact is that all of them retain a fundamental, protected right to private gun possession, though none keep the wording of the current Second Amendment.

Libertarian Constitution

Team libertarian was led by Ilya Shapiro of the Cato Institute and included Timothy Sandefur of the Goldwater Institute and Christina Mulligan of Brooklyn Law School.

“The right of the people to keep and bear arms shall not be infringed.”

The Libertarian Constitution changes the Amendment the least, simply chopping off the prefatory clause. Of course, this change appears to be something Heller itself arguably already accomplished.

Conservative Constitution

Team conservative was led by Ilan Wurman of Arizona State University College of Law and included Robert P. George of Princeton University,  Michael McConnell of Stanford Law School, and Colleen A. Sheehan of Arizona State University.

“Neither the States nor the United State[s] shall make or enforce any law infringing the right to keep and bear arms of the sort ordinarily used for self-defense or recreational purposes, provided that States, and the United States in places subject to its general regulatory authority, may enact and enforce reasonable regulations on the bearing of arms, and the keeping of arms by persons determined, with due process, to be dangerous to themselves or others.”

The Conservative Constitution changes the Amendment the most. It settles within the provision itself all sorts of current debates about the scope and reach of the right to keep and bear arms. For starters, it’s worth noting that the Conservative version seems to implicitly reject an anti-tyranny rationale for the right by pegging the right’s coverage—at least with respect to the weapons encompassed—to those “ordinarily used” for two activities: self-defense and recreation. The NFA—which heavily regulates machineguns, as well as short-barrel shotguns and rifles—would still likely be completely constitutional under this conception, and the 1994 assault-weapon ban would very likely be (but, given the explosion in private use and possession of “assault weapons” after expiration of the ban in 2004, a different answer might be mandated today). We’ve written on the blog about categories of weapons and Heller’s lack of clarity on this question. I’m not entirely sure the “ordinarily used” test would function better in practice than the (much-maligned) “common use” test. As Judge Easterbrook put it: “relying on how common a weapon is at the time of litigation would be circular,” and “it would be absurd to say that the reason why a particular weapon can be banned is that there is a statute banning that it, so that it isn’t commonly owned.” The same, it seems to me, could be said for the ordinarily used test. And the phrase “of the sort” is likely to create the same interpretive difficulties that Heller did by exempting “M16s and the like” from constitutional coverage. (The Fourth Circuit’s Kolbe decision is the exemplar here.)

The Conservative Constitution also seems to settle some questions about who gets to exercise the right. It protects the right for all “persons,” not just citizens (implicitly rejecting a holding from some courts, like the Fifth Circuit, that say undocumented immigrations have no Second Amendment right), and provides that only those who have been deemed dangerous to themselves or others can be denied the right. This appears to adopt the “danger rationale” championed by judges like Justice Barrett to the exclusion of any virtue-based exclusion that other courts have adopted. It would likely generate hard questions about current state and federal prohibitors, such as those for unlawful drug users, nonviolent felons, those with certain types of mental health adjudications unconnected to danger (like a person acquitted after successful invocation of the insanity defense), and those under specific types of restraining or protective orders. In that respect, it’s worth noting that under this provision, “red flag”—Extreme Risk Protection Order—laws would likely be constitutional because, as Joseph and I argue in a recent paper, they comply with due process and are targeted toward dangerousness.

Progressive Constitution

Team progressive was led by Caroline Fredrickson of Georgetown Law School and included Jamal Greene of Columbia Law School and Melissa Murray of New York University School of Law.

“The right of the people to keep and bear arms is subject to reasonable regulation by the United States and by the States.”

The Progressive version is less a robust protection for the right than a codification of regulatory authority for state and federal governments. Although the “reasonable regulation” position has fallen out of favor in a post-Heller world, it was not that long ago it was the dominant understanding of what an individual right to keep and bear arms looked like—and something of a consensus position among those who thought the Amendment was an individual right. Consider the George W. Bush Administration’s amicus brief in Heller (filed by then-Solicitor General Paul Clement): “the Second Amendment, properly construed, allows for reasonable regulation of firearms.” As Adam Winkler has shown, this is precisely how states interpreted their own individual rights-bearing provisions prior to Heller: “The most prominent feature of the state law in this area is the uniform application of a deferential ‘reasonable regulation’ standard to laws infringing on the arms right.”