“Supreme Semester” Event No. 3: RWU v. Harvard on Gun Control and Second Amendment

A room packed with students and faculty was recently treated to the third event of the RWU “Supreme Semester”: Mark Tushnet, Cromwell Professor at Harvard Law, debating our own Carl Bogus on the meaning of the Second Amendment.  This is no purely academic matter: it is a crucial issue facing the U.S. Supreme Court as they will next month hear arguments in D.C. v. Heller, its first case construing the Second Amendment since 1939.

The text is ambiguous: “A well-regulated Militia, being necessary for the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.” Were the Framers focusing on “the people” (the individual-rights position) or on “the Militia” (the position of gun-control advocates)?

For decades, courts and commentators rejected the individual-rights model.  However, in recent years the question has become contested because of a new round of scholarship (as exemplified by Professor Tushnet and his book Out of Range: Why the Constitution Can’t End the Battle over Guns (2007)). The Court will be asked to decide whether the amendment should be read as providing the ultimate protection for individuals against a “tyrannical” federal government – or merely as a provision intended to block federal efforts to disarm state militias.

Bogus argued that “it would be implausible and disastrous” to interpret the amendment as a right to take up arms against the government if it is perceived by the citizen as “tyrannical.” Quoting Justice Robert Jackson’s famous statement that “the Bill of Rights cannot be a suicide pact,” Bogus argued that guaranteeing a right to take up arms against a democratic government was inconceivable to the Framers. “The idea that the ultimate check on governmental tyranny is the barrel of a gun is not the philosophy of George Washington, John Adams and James Madison,” he argued. “It’s the philosophy of John Wilkes Booth, the Ku Klux Klan, Timothy McVeigh and Robespierre.”

Tushnet didn’t totally disagree; he believes that gun-control and gun-rights partisans are too inflexible on their respective viewpoints.  Indeed, in his view, the individual vs. collectivist debate is of very recent vintage. “They [partisans in the debate] have converted a very minor theme of the Founding Era into a major theme that it was not,” he said.  However, in his view, other evidence from the framing period and later the Civil War era (including a little-known discussion of the Second Amendment in the nefarious Dred Scott decision) tipped the scales in favor of the individual-rights model.

A round of spirited questions from students followed and the consensus among the attendees was that Professor Bogus defended the “home court” very well.  Thanks to the RWU American Constitution Society and the ACLU for organizing and sponsoring this terrific event, and to Professor Jared Goldstein, one of our Con Law experts, for moderating.