April 30, 2007
Shahid Buttar is a lawyer and recording artist in Washington, D.C.
Last week's shootings at Virginia Tech were a regrettably familiar spectacle: Americans unleashing inexplicably horrendous violence upon one another, followed by deafening silence from lawmakers unwilling to challenge the National Rife Association and other interest groups promoting "gun rights." But before committing themselves to such shocking timidity, neither policymakers nor their constituents should pretend that any constitutional values are threatened by getting guns off our streets and saving lives.
The Second Amendment guarantees a right to bear arms. Like the First Amendment, it includes both a public and private dimension. For instance, the First Amendment protects the individual's right to speech—but in the service of a corresponding public right to the free exchange of information and perspectives. Similarly, the Second Amendment's private "right ... to keep and bear arms" serves a broader, more important function of preserving a popular check on potentially tyrannical government.
The context of the Second Amendment indicates its central meaning. It explicitly contemplates a "well-regulated militia," and immediately follows the First Amendment (guaranteeing freedom of speech and assembly) and precedes the Third and Fourth Amendments (protecting citizens from being forced to house soldiers or submit to unreasonable searches or seizures). In this context, the central concern of the Founders—enabling We the People to defend ourselves from government run amok—is quite clear. The Second Amendment is ultimately an escape hatch, intended by the Framers to enable popular uprisings were our government to grow unhinged from popular accountability.
While the private right ensured by the Second Amendment is widely trumpeted by gun advocates, its public dimension is rarely discussed. But its implications are crucial in the wake of the Virginia Tech tragedy. The Second Amendment's public meaning not only suggests the legitimacy of laws restricting gun ownership, but also counsels drastic measures to roll back the ongoing criminalization of nonviolent political dissent.
On the one hand, a right to armed rebellion may seem archaic today. But the right was historically non-controversial. The framers themselves took up arms to overthrow imperial British rule and establish our constitutional Republic.
Moreover, no right is absolute. Even the most precious liberties are subject to judicial scrutiny, and the authorization of restrictions where justified. The Supreme Court once went so far as to allow the arbitrary detention of a hundred thousand Japanese-Americans under its strictest standard of scrutiny. While the individual right to bear a weapon may remain legitimate in the abstract, legislatures have every right to deem the public interest in preventing mass murder sufficiently compelling to enact a law narrowly tailored to address it. In Britain, for instance, regulations on gun ownership have proven largely successful in preventing gun violence.
Finally, the right need not encompass armed rebellion, despite the Amendment's textual emphasis on "arms." When construed intelligently, constitutional provisions are translated to preserve their meaning in the face of changes in social circumstances over time. The Fourth Amendment's protections against seizures, for instance, have been read to apply to electronic surveillance, which did not exist when the framers wrote the Amendment's text. The Second Amendment could similarly require a right to assertive citizen assembly—not merely to express dissent, but to claim power over public institutions occupied by non-violent dissidents. At the very least, it prohibits the escalating imposition of restrictions on non-violent acts of protest.
Yet jurisdictions around the country have increasingly impeded concerned citizens from raising their collective voice. During the 2004 Republican National Convention, the New York Police Department infiltrated peaceful activist groups and arrested nearly 2,000 people—many without probable cause, resulting in hundreds of thousands of dollars in fines and settlements. Earlier this month, reports emerged that, during a 2002 protest in Washington, a secret FBI unit illegally detained and harassed a group of anti-war activists.
But the Second Amendment guarantees a right to resistance. At the very least, these abuses should not take five years to come to light, nor should they be addressed only after-the-fact. Gestapo tactics by local police departments and federal authorities to intimidate non-violent dissidents should be struck down as unconstitutional.
This week, admitting that "[t]he history of the intelligence community is replete with instances of abuse of civil liberties," undersecretary of defense for intelligence James R. Clapper Jr. announced the closure of the controversial TALON database. We should not be forced to rely upon conscientious public servants to check their own authority. It was precisely for times like these that the Second Amendment was created: to guarantee a right to citizen insurrection—not a right to impose risks on communities by forcing open the door to weapons, as the U.S. Court of Appeals for the D.C. Circuit did when recently striking down the District's public safety laws.
The Founders meant to equip us with tools to keep our government on a leash. But as the gun lobby contorts those principles, they instead place Americans at the mercy of our most violent individuals, while leaving us unable to challenge unresponsive government. We allow the Constitution's co-optation at our own peril, lying in wait for the inevitable next set of unnecessary deaths in a long, agonizing series of tragic massacres.