Constitution Check: Can there be no exceptions to Second Amendment gun rights?

Lyle Denniston

Lyle Denniston examines claims that the Second Amendment protects gun ownership rights extensively and how that jibes with a 2008 Supreme Court decision.

The statements at issue:

Senator Ted Cruz “began by reviewing the historic origins of the Bill of Rights and then asked whether the proposed firearms restrictions might be compared to placing limits on the First Amendment right to free speech or the Fourth Amendment protection against unreasonable search and seizures.  Speaking directly to [Senator Dianne] Feinstein, Cruz asked: ‘Would she deem it consistent with the Bill of Rights for Congress to engage in the same endeavor that we are contemplating doing to the Second Amendment in the context of the First or Fourth Amendment?’ ”

– News story in The Washington Post on March 15, describing comments made the previous day by Texas Republican Ted Cruz as the Senate Judiciary Committee prepared to vote on new federal gun control bills drafted by California Democrat Dianne Feinstein.

“Harvard Law grad Ted Cruz is willfully deceiving the public into thinking the Second Amendment is more absolute than the Supreme Court says it is.”

 Comment on March 15 under the byline “Allahpundit” on the Hot Air website.

We checked the Constitution, and…

The Bill of Rights does not speak in terms of absolutes–that is, rights without any exceptions. And the Supreme Court, in interpreting constitutional guarantees of rights, has said exactly that, repeatedly and even predictably. It may be that some defenders of Second Amendment gun rights would not accept as legitimate what the Supreme Court has said, but there is no denying where the court has stood, even on the Second Amendment.

The history of judicial interpretations of the First Amendment has been somewhat different from that for the Fourth Amendment–the two parts of the Bill of Rights discussed by Senator Cruz.

The court has allowed only a very few exceptions to rights of free speech and free press, and has required that they be supported by the strongest policy needs. In fact, in recent years, the current court has been even more adamant than some of its predecessors about not creating any new exceptions, as when it refused to create a First Amendment loophole to permit banning violent video games. The list of exceptions, indeed, is very short–but there are exceptions, such as obscenity and “fighting words.”

The Fourth Amendment, one might say, is littered with exceptions, and the Supreme Court throughout history has added to the list. That is because that amendment uses the word “unreasonable” to say what kinds of searches and seizures it does not allow, and the court has been quite free in finding that various police practices are “reasonable.” As one obvious example, the court has often allowed police to make searches when they do not have a court-approved warrant, if the public need is seen as strong enough.

In reflecting on Senator Cruz’s remarks at the Judiciary Committee meeting, it is important to recall that there are actually two histories on the scope of the Second Amendment–one very long history, and one very short.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

From the time the Second Amendment “right to keep and bear arms” was added to the Constitution as part of the Bill of Rights in 1791, until 2008–that is, a span of 217 years–that provision had never been formally declared to be a personal right. The almost universal understanding (until several modern scholars began questioning it) was that the right only applied to state militia organizations, like the modern National Guard.

It was only in 2008, in the decision in District of Columbia v. Heller, that the Supreme Court ruled that the right was a personal right, conferred by the amendment to help assure a right of self-defense.

But the Heller decision was far from a declaration that there can be no exceptions to that personal right to have a gun. Indeed, the majority opinion in that case said explicitly: “Like most rights, the right secured by the Second Amendment is not unlimited.”

The opinion went on to cite a “historical tradition of prohibiting the carrying of dangerous and unusual weapons,” and it added that nothing in this decision cast doubt on that, or on the power of legislatures to adopt “reasonable” restrictions on the Second Amendment right.

As the history of interpretation of the word “unreasonable” in the Fourth Amendment makes clear, allowing the government to limit rights in a “reasonable” way can result in quite far-reaching limitations.

Moreover, if one takes the Heller decision at face value, the Supreme Court so far has found just one kind of gun control that it has declared to be unreasonable and therefore a violation of the Second Amendment: a total ban on having a handgun, in any place and for any purpose whatsoever.  But even as the court struck down such a ban, it said it was doing so only to protect the right to have a gun for self-defense in one’s own home.

It has become abundantly clear that, since that ruling five years ago, supporters of gun rights have sought to defend the Second Amendment as if it were considerably more sweeping than what the court said it was. And despite repeated efforts to get the court to take on new cases that have the potential to expand the personal right to have a gun outside the home, the justices so far have not agreed to review any one of those pleas.

That is not to say that the right to have a gun only at one’s home is going to be the court’s last word on the reach of the Second Amendment. And with increased activity by gun control advocates, in Congress and in some state legislatures, there almost certainly will be a number of new lawsuits testing the issue, and some of them very likely will reach the Supreme Court.

In the meantime, however, the Second Amendment does have its limitations, whether or not those get recognized in political or legislative debates.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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