Last week the U.S. Supreme Court agreed to decide whether the Second Amendment to the Constitution grants individuals the right to own guns. When controversial issues like this head to the Supreme Court, people tend to take predictable positions based on their positions on the underlying issue at stake. If the issue is gun control, “liberals” tend to support increased restrictions on firearms, and “conservatives” tend to oppose them. Few people consider whether the Constitution protects the right to own a gun. To the extent people, or even judges, recognize that issue, they are quick to interpret the relevant Constitutional provisions in a way that supports their political position. This tendency leads to inconsistency.
Here is what I mean: In abortion cases, conservatives always ask where in the Constitution does it specify the right to an abortion, and decry the alleged tendency of liberal judges to read rights into the Constitution that are not explicitly spelled out. But if the issue is gun control, conservatives favor an expansive reading of the Second Amendment rather than a strict textual approach. Liberals are equally inconsistent in the opposite direction. They deny that the Second Amendment can be read to supply any individual rights at all, and they deny that the right to own a gun is important enough to be protected by more general Constitutional provisions of liberty. The right to an abortion, on the other hand, need not be expressly stated in the Constitution since it is so obviously fundamental.
If we were to interpret Constitutional rights in a more consistent way, we may not always get the result that comports with our political preference, but we might create more respect for the document’s principles, and for the idea of the rule of law. The political beliefs of individual judges would not be wholly determinative of the result, and confirmation battles over judicial appointments might not be quite so contentious. Some people say we can arrive at more consistent results by using an “original intent” method of interpreting the Constitution. But those who espouse that method (notably Justice Scalia) are not always consistent in its application. No one who signed onto Bush v. Gore (which uses a “liberal” interpretation of voting rights and a disdain for states’ rights to reach a “conservative” result), can claim to follow this method consistently. Moreover, there is much evidence from the writings of the founders of the Constitution that they themselves never intended the rights the document recognized to be interpreted based solely on the standards and practices of the eighteenth century. Rather than arguing about original intent, it would seem more productive to recognize that the same evolving methods of Constitutional interpretation should be employed regardless of whether the result comports with the political preferences of the left or the right. So liberals should perhaps recognize that many law-abiding people in this country consider gun ownership to be among the most sacred and important manifestations of their personal freedom, and that the Constitution, perhaps not clearly in the text, but in its general protections of personal liberty, does perhaps offer some protection to the right of law-abiding citizens to own a gun. By the same token, conservatives should recognize that the freedoms they espouse for economic activity and property rights might also extend to the right of individuals to read and watch what they want, and do with their bodies what they want.
As for the DC gun control ordinance case accepted by the Supreme Court, it seems to me perfectly possible for the Supreme Court to recognize that the individual right to own firearms may be deserving of some Constitutional protection, while also recognizing the right of the State to place reasonable restrictions on that right. Banning the private ownership of handguns could very well be permissible even in a world where the Constitution protects the individual’s right to keep a rifle at home. I am not making a prediction as to the outcome here, but my hope is that whatever the Court decides, it will not be the usual 5-4 conservative/liberal split that only breeds more cynicism about the entire legal process.