Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

The Rights Paradox on Guns and More

Timothy Sherratt


August 15, 2008

The US Supreme Court’s June decision to uphold a citizen’s right to bear arms (District of Columbia v Heller) has provoked considerable worry among gun-control advocates. This is unsurprising. What is surprising is the response of gun-rights groups, who appear to be no happier with the ruling.

The anxiety voiced by both sides comes in response to the Washington, D.C. City Council’s interpretation of the decision. Heller overturned D.C.’s handgun ban as a violation of the Constitution’s Second Amendment right to bear arms. In crafting new legislation, the Council now classifies semiautomatic handguns as machine guns, which remain banned. In response, gun-rights groups have sponsored a bill in Congress (HR6991, the Second Amendment Enforcement Act) to bring the District to heel.

Not so fast! The law of unintended consequences has gone into effect.

Groups like the National Rifle Association used to attack their opponents by frightening their supporters. The NRA declared any bill that would regulate the terms of gun ownership, transportation, use, or location to be a step down a slippery slope toward the goal gun-control advocates want: expunging the Second Amendment from the Constitution altogether.

With one stroke of his pen, Justice Antonin Scalia (writing for the Court’s majority) deprived the NRA of this core argument. The Second Amendment links gun rights to the need for a trained militia in an age when there was neither a standing army nor weapons any more sophisticated than the Minuteman’s musket. The court could have said that the amendment describes an obsolete public right. However, Justice Scalia declared the right to bear arms to be a fundamental private liberty. An NRA victory, right?

But Justice Scalia did not stop there. He declared that the affirmation of this right did not invalidate reasonable regulation. Thus, the court offered an invitation to test the limits of what counts as “reasonable” short of an outright ban on the right to bear arms.

No wonder the gun-rights groups are worried. Reasonableness may justify extensive regulation. Paradoxically, therefore, the legal terrain may have become more favorable for regulation after the right was upheld than it was before the court’s ruling.

The Heller decision represents something about rights that is wider in scope. For example, a similar pattern is evident in abortion policy since Roe v Wade. To begin with, Roe secured the right to an abortion with little possibility of regulation, at least during the first three months of pregnancy. But in the cases decided since Roe, most notably Planned Parenthood v Casey in 1992 and the more recent Nebraska “partial-birth abortion” cases, numerous regulations have been tested and a great many of them upheld as consistent with the right to an abortion.

To be sure, many citizens will continue to die from gunshot wounds, some in the line of law-enforcement duty. And large numbers of abortions will still be performed. But the recognition of rights may facilitate rather than foreclose regulation.

There is more to this seeming paradox than an interest group being deprived of its major argument. The principle of human dignity connects freedom with obligations, rights with regulation. If the enshrining of a right affirms the place of free will in human dignity, so, too, is human dignity reflected in the physical and moral shape of the created order, whose norms are written on our hearts, in St. Paul’s words. Humans are social and transcendent beings, interdependent with the physical environment and their communities. Once a right is granted, regulation connects that right to all the relationships that give that right its integrity. Thus, the dignity reflected in the right to bear arms also implies responsible use of weapons and appropriate safety measures to protect citizens from their misuse.

—Timothy Sherratt, Professor of Political Studies
    Gordon College

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