How Embarrassing: The Constitution Protects the Guns that Kill

March 21, 1991|By GEORGE F. WILL

WASHINGTON — Washington. Two staggering facts about today's America are the carnage that is a consequence of virtually uncontrolled private ownership of guns, and Americans' toleration of that carnage.

Class, not racial, bias explains toleration of scandals such as this: More teen-age males die from gun-fire than from all natural causes combined, and a black male teen-ager is 11 times more likely than a white counterpart to be killed by a bullet.

If sons of the confident, assertive, articulate middle class, regardless of race, were dying in such epidemic numbers, gun control would be considered a national imperative.

But another reason Americans live with a gun policy that is demonstrably disastrous is that the subject was constitutionalized 200 years ago this year in the Second Amendment: ''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.''

Many gun control advocates argue that the unique 13-word preamble stipulates the amendment's purpose in a way that severely narrows constitutional protection of gun ownership.

They say the amendment obviously provides no protection of individuals' gun ownership for private purposes. They say it only provides an anachronistic protection of states' rights to maintain militias.

However, Sanford Levinson of the University of Texas Law School says that is far from obvious. In a Yale Law Journal article, ''The Embarrassing Second Amendment,'' he makes an argument dismaying to those, like me, who favor both strict gun control and strict construction of the Constitution.

He begins with some historical philology showing that the 18th century meaning of ''militia'' makes even the amendment's preamble problematic.

He notes that if the Founders wanted only to protect states' rights to maintain militias, they could have said simply, ''Congress shall have no power to prohibit state militias.'' George Mason, a sophisticated Virginian who faulted the Constitution because it lacked a bill of rights, said, ''Who are the militia? They consist now of the whole people.''

The Second Amendment is second only to the First Amendment's protections of free speech, religion and assembly because, Mr. Levinson argues, the Second Amendment is VTC integral to America's anti-statist theory of republican government.

That theory says that free individuals must be independent from coercion, and such independence depends in part on freedom from the menace of standing armies and government monopoly on the means of force.

In the most important Supreme Court case concerning Congress' right to regulate private gun ownership, the court, upholding the conviction of a man who failed to register his sawed-off shotgun, stressed the irrelevance of that weapon to a well-regulated militia. Gun control advocates argue that this lends no support to a constitutional right to ownership for private purposes.

But Mr. Levinson notes that the court's ruling, far from weakening the Second Amendment as a control on Congress, can be read as supporting extreme anti-gun control arguments defending the right to own weapons, such as assault rifles, that are relevant to modern warfare.

The foremost Founder, Madison, stressed (in Federalist Paper 46) ''the advantage of being armed, which the Americans possess over the people of almost every other nation.''

So central was the Second Amendment to the understanding of America's political order, Justice Taney in the Dred Scott decision said: Proof that blacks could not be citizens is the fact that surely the Founders did not imagine them having the right to possess arms.

The subject of gun control reveals a role reversal between liberals and conservatives that makes both sides seem tendentious.

Liberals, who usually argue that constitutional rights (of criminal defendants, for example) must be respected regardless of inconvenient social consequences, say the Second Amendment

right is too costly.

Conservatives, who frequently favor applying cost-benefit analyses to constitutional construction (of defendants rights, for example), advocate an absolutist construction of the Second Amendment.

The Bill of Rights should be modified only with extreme reluctance, but America has an extreme crisis of gunfire. And impatience to deal with it can cause less than scrupulous readings of the Constitution.

Whatever right the Second Amendment protects is not as important as it was 200 years ago, when the requirements of self-defense and food-gathering made gun ownership almost universal. But whatever the right is, there it is.

The National Rifle Association is perhaps correct and certainly is plausible in its ''strong'' reading of the Second Amendment protection of private gun ownership.

Gun control advocates who want to square their policy preferences with the Constitution should squarely face the need to deconstitutionalize the subject by repealing the embarrassing amendment.

George F. Will is a syndicated columnist.

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