At the Founding, the Second Amendment was a Federalism issue.  Madison and the other Federalists wanted to create a powerful central government after their experience with the Articles of Confederation.  But the new Constitution included troublesome language, some of which appeared to put the Federal Government in charge of the state militias by giving Congress the power to “organize and discipline” them, and to “govern” them when federalized.  State officials worried that Congress might use these powers to disarm their militias.  This particularly concerned Southern legislatures who relied on state militias for managing the slave population.

To secure the necessary votes for ratification in the State legislatures, the Founders protected the power of “the people” to “keep and bear arms.”  Ratifying officials almost certainly thought of this clause as protecting State power to arm a militia, since it was State legislatures, not voting citizens, they intended to placate.

If the original meaning of the Constitution is to protect this State power, then incorporating it against State governments makes no sense.  State governments by definition govern the Militia, and this would by definition include the power to disband them if necessary.

Given the introductory clause “A well-regulated militia,” the Second Amendment must be interpreted as either protecting the power of States to form militias (meaning a collective right) or the power of individuals to form ad hoc militias (meaning an individual right).  Many gun “rights” advocates support the latter view, and the Founders would certainly have intended to protect individual citizens against confiscation of firearms (though not necessarily their regulation) to protect their right to form militias.  In this event, the ruling gets it exactly right: States should have no more power to regulate gun ownership, and therefore private militia formation, than the Federal Government.  Given the current state of Constitutional jurisprudence, then, I think this was the correct conclusion under the law, though I think Thomas was on the most solid ground by using the Privileges and Immunity Clause instead of the 14th Amendment (for more on this see Scott Lemieux at LGM and Jonathan Turley at his blog).

This has interesting implications.  Note for example that if the Constitution protects the rights of citizen groups to form ad hoc militias for their own purposes, then the Klan arguably acted legally by forming armed groups to enforce Jim Crow laws and local customs.  Gun “rights” advocates, after all, argue for the “right” to intervene militarily against their elected government should they disagree with government policy.

In any event, McDonald has implications for an argument I made here at FBL back in January: that “a shift in normative paradigms about the social order (e.g, about the appropriateness of violence in society, or killing to protect property) could threaten the existence of a “right to keep and bear arms” as a shared understanding.”

Americans appear to be fairly evenly divided on the regulation of gun ownership, with little support for looser gun control laws.  Indeed, it seems like most Americans probably don’t think about gun rights or gun control laws very much, except when some event in the news brings it to their attention.  Note for example that the Columbine tragedy correlates with a very sharp increase in support for gun control laws, which returned to previous levels over time.

These polls require a grain of salt, since they are national polls, and some results suggest that views vary quite a bit from region to region, with support for regulating firearm ownership particularly high in big cities.  We can expect local populations and jurisdictions to have sharply divergent preferences with respect to the type and scale of gun regulation.  So I see two problems for gun “rights” advocates in this ruling.

First, it violates the Constitutional principle of Federalism and local control by further federalizing normative institutional structures with respect to the “rights” and privileges of citizenship.  Conservatives (especially Southerners) complain about this when the Court incorporates national standards for civil rights, religious expression, and the regulation of sex and marriage.  It is at least amusing to see a Conservative Court take a Warren Court approach to incorporation of a “right” conservatives consider crucial to liberty, and begs the question of whether this Court and other Conservatives would support incorporation of abortion rights against the states using similar arguments.  It also represents a paradigmatic shift to the right with respect to firearm regulation by forcing a libertarian view of gun “rights” on more liberal jurisdictions, and this can be expected to energize potential gun control advocates.

More importantly for my discussion of changing social norms and the protection of gun “rights,” this ruling should lead to nullification of the law challenged in the suit, as well as many others, as unconstitutional.  These laws exist because citizens demanded them, whether or not they work, and we can expect cities and states to work on formulating regulatory schemes which pass Constitutional muster.  Since the Court has said that limits on the right to keep and bear arms do exist, we can expect further regulation of firearms in many places even after incorporation.

This process will reopen a gun “rights” debate which Second Amendment proponents had largely won, and awaken previously quiet constituencies to this policy debate.  This is especially so if it leads to formation of ad hoc militia groups under looser gun control laws.  Where gun ownership becomes more pervasive and public, Americans who have little exposure to them and want them regulated could suddenly join a discussion they have previously ignored because it made little difference to them.  Figuring out how many Americans understand weapons, own them, and care about gun “rights” is problematic.  But it makes sense to think that gun advocates are more energized on the issue, and they should take care to avoid bringing gun control onto the policy agenda unnecessarily.

Eighty-two percent of Americans think gun control laws should stay the same or be made stricter.  This is a large constituency to arouse from slumber, and drastic changes, especially in large cities, could cause a backlash against gun ownership and gun “rights.”  For NRA members and gun “rights” advocates, this is already a salient voting issue–”I’m the NRA and I vote” is not a popular bumper sticker because of the cool logo.  Making gun control a salient issue for this 82% could backfire, and if looser gun control laws appear to cause in increase in crime, or simply expose Americans who don’t like guns and don’t want to be around them to people carrying weapons around all the time, it could become a salient issue for them, as well.

This is how laws–and norms–change.

Tags: Norms and Social Construction, Second Amendment