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Second Amendment

6 min read

Part of Crime, police and punishment.

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Every episode (2)

Who argued it

John Lott · David Harsanyi

Individual Rights · American History

Background

Heller and the individual right

The Supreme Court’s decision in District of Columbia v. Heller held that the Second Amendment protects an individual right to keep and bear arms, and that the District’s ban on handguns in the home for self-defense violated that right. Damon Root described the case as presenting a clear division: on one side, local gun control laws enacted by officials accountable to local residents; on the other, the constitutional text, which a majority of the court found protected an individual right. The decision was 5 to 4, and the side that put the text of the Constitution ahead of what local officials wanted triumphed Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).

Bob Zadek framed the public reaction to Heller as a category error. When the media asked ordinary citizens whether they agreed with the decision, he argued, they were voicing an opinion on policy, not on constitutional law. The Supreme Court does not set policy, he said; it interprets the law or the Constitution, and only constitutional scholars can be asked whether a decision is supportable on the merits Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).

David Harsanyi called Heller important for codifying that gun ownership is an individual right rather than a collective right, not merely about militias but about people defending themselves. He noted that McDonald was another case but said it was not important to dive into Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018).

Originalism and the battle over history

Josh Blackman described Heller as perhaps the greatest example of liberals and conservatives fighting on the same battlefield. The majority opinion by Justice Scalia found that the Second Amendment protects an individual right to keep and bear arms. Justice Stevens’s dissent was thoroughly based in history, examining founding-era statements, the drafting history of the amendment, and other statutes passed in the 1800s, and concluding that the Second Amendment was not about individual rights. Blackman called the outcome a victory for Scalia and for originalism Eight-Dimensional Chess (2020).

Harsanyi said the amendment is not particularly well-written, and that the wording resulted from a long editing process that ironically did not make it clearer. He said there is not a single quote from a single founder contending that owning a weapon is not an individual right, and that the only debate around the amendment between Federalists and anti-Federalists concerned who would control the militias, not whether individuals would hand back their weapons. He added that most of the colonies had something similar in their own constitutions that was clearer about it being an individual right Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018).

History of federal gun legislation

Harsanyi said that before the 1930s there was not a single written federal law limiting gun ownership, though some gun control laws existed at the state and city level. No one had a license for a gun; people bought whatever gun they wanted. In the 1930s, he said, the federal government began passing legislation during FDR’s administration—the National Firearms Act, in two iterations—which led to the first Supreme Court ruling on gun ownership, Miller. That case found the government could limit the kinds of weaponry people owned, but nothing in common use, only exotic or military weapons. Until 1986, he said, people could own fully automatic weapons simply by paying some money Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018).

Harsanyi attributed the modern debate to the 1970s and late ’60s, when urban areas had many criminals and roughly half of Americans in those places said guns had to be taken off the streets while the other half said more guns were needed for self-protection. He said this is basically the debate that still exists today Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018).

Self-defense and dependence on the state

Harsanyi titled his book First Freedom for two reasons. First, a historic one: without the Second Amendment, without the natural right to self-defense and a gun allowing that right, there would be no other rights. At the Battle of Lexington and Concord, he said, the gun protected those people and they tried to stop the British from taking a cache of weapons, knowing that without the weapons they could not protect their natural rights. Second, the right to self-defense goes back farther in Western history and British law than the right to freedom of religion or freedom of speech Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018).

Bob Zadek characterized gun control as starting with an accepted right—self-defense—and then limiting the effectiveness of the most valuable tool for exercising it, which he compared to saying you can have self-defense but cannot use a closed fist. Harsanyi agreed that if someone has an inherent right to protect themselves, their families, and their property, and you do not give them the means to do it, then in practice you are not allowing people to defend themselves, which he called an attack on the Second Amendment and the ideas behind it Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018).

Zadek argued that to the extent one’s right of self-defense is limited, the individual must get protection from the government, so gun control inherently builds extreme dependency upon the state. Harsanyi agreed, saying that the idea a person should have to go to the state to ask permission to have guns within the scope of legality cuts against everything the Constitution is about Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018).

Across episodes

Three episodes touch the topic: the 2014 Damon Root interview, the 2018 David Harsanyi interview, and the 2020 Josh Blackman interview. The episodes show no development between the earlier and later treatment; each discusses Heller and the individual-right holding without advancing a changed argument.

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