America's 21st-century gun right
FOR THE FIRST time in the nation's history, the US Supreme Court has ruled that the Second Amendment creates an individual right to possess guns for nonmilitary purposes.
This is a stunning development - and a dramatic departure from how the Constitution has long been understood. Despite the court's emphasis on constitutional text and history, its 5-4 decision yesterday in the District of Columbia gun control case reveals a much broader point: Constitutional change often comes from the efforts of energetic political movements, of which the movement for gun rights is merely one example.
As recently as 1992, then Chief Justice Warren Burger, a conservative, publicly declared that "the Second Amendment doesn't guarantee the right to have firearms at all." And until 2007, not a single federal court had invoked the Second Amendment to strike down a restriction on gun ownership.
To be sure, everyone should agree that the Second Amendment creates some kind of individual right. But what kind? The text is unclear: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."
Yesterday's opinion, written by Justice Antonin Scalia, finds an individual right to possess guns for traditionally lawful purposes, including hunting and self-defense. In an opinion by Justice John Paul Stevens, the dissenters respond that the Second Amendment right is limited to the use of weapons for military purposes and does not extend to hunting and personal defense.
The 157 pages produced by the justices delve deep into the Constitution's text and history - with references to William Blackstone, James Madison, Alexander Hamilton, and many others. On the history, reasonable people can disagree about which side is right. But what happened yesterday cannot be adequately understood by reading what the justices wrote. The court's decision would have been exceedingly unlikely without the efforts of many citizens over the last two decades to establish the existence of an individual right to bear arms for purposes of hunting and self-defense.
In this way, the court's ruling is akin to decisions that initially seem cut from a very different cloth. In 1954, the court established, for the first time, that racial segregation was unconstitutional. In the process, it inaugurated a series of rulings defining the nature of the right to be free from racial segregation. In 1971, the court struck down, for the first time, a law discriminating on the basis of sex. In the process, it inaugurated a series of rulings establishing the scope of the right to be free from sex discrimination. In 1996, the court struck down, for the first time, a law discriminating on the basis of sexual orientation. Courts are continuing to elaborate the nature of the right to be free from discrimination on that basis.
In each case, the court responded to successful social movements and massive changes in national understandings.
Of course the Second Amendment debate has a distinctive feature. Historians generally reject the view that, when ratified, any provision of the Constitution banned racial segregation or discrimination on the basis of sex or sexual orientation. But many historians think that when ratified, the Second Amendment did protect the right to bear arms for self-defense.
Nonetheless, the court lacks a time machine, and it would be preposterous to understand yesterday's decision as simply channeling of history. Many historians insist that the Second Amendment right is limited to military purposes. The court's acceptance of a broader interpretation has everything to do with a change in the public climate in which Republican appointees, in particular, have become sympathetic to the gun right.
We will now see many years of efforts to decide the scope of that right. The results of those efforts will reflect, in part, what the court said yesterday. But even more, they will reflect the energy and strength of political communities on both sides of the debate.
There is a still larger lesson here. Though the Constitution has governed the nation for well over two centuries, its meaning is not stable over time. In 1970, the Constitution did not mean what it meant in 1950. In 2008, the Constitution is quite different from what it was in 1988 - and in 2028, we will probably be in for some major surprises.
Even when the court purports to speak for the original understanding of the Constitution, it is usually responsive not only to people long dead, but also to those now living.
Cass Sunstein, a professor at Harvard Law School, is the coauthor of "Nudge: Improving Decisions About Health, Wealth, and Happiness"
