The statement at issue:
“What government cannot do is deny the individual interest in self-defense….Restrictions on [gun] magazine size are constitutionally suspect. There is no question that a limit of 10 rounds (as the president has proposed) or seven (as enacted by New York State last month) would impair the right to self-defense. A magazine with 10 rounds may provide adequate protection against a single nighttime intruder. But it may not. What if there are two intruders?”
– David B. Rivkin Jr. and Andrew M. Grossman, attorneys in Washington, D.C., in a February 11 guest column in The Wall Street Journal, headlined “Gun Control and the Constitution.”
We checked the Constitution, and…
The Supreme Court has said explicitly that the Constitution’s Second Amendment gives Americans a right to have a gun for self-defense. But the court has also said that the Second Amendment does not forbid the government from “prohibiting the carrying of dangerous and unusual weapons.”
That, of course, is not a self-defining category of modern weapons, so legislatures and courts are going to have to sort out what makes a gun “dangerous” and what kind of a gun is “unusual.” It is simply too early to say that we already know the constitutional answer to either question.
In the newly energized effort to pass new gun control laws, in the wake of the massacre of school children in Newtown, Connecticut, almost every proponent is urging new limits on the number of bullets that can be fired by a gun without reloading–that is, limits on the size of gun magazines. The theory is that mass shootings would not occur–or at least would occur less often and perhaps be more limited–if a shooter had to pause to reload, perhaps giving someone a chance to stop the rampage.
Since the Supreme Court has not agreed to rule on a new Second Amendment case since 2010, it has not sorted out any of the details of how far the personal right to have a gun actually reaches, and what steps an individual can take, using a gun, to defend against threats to life or safety. Moreover, it has not even taken the first step toward clarifying Second Amendment rights: that is, it has not yet said what constitutional test a new gun law would have to pass in order to satisfy the Second Amendment.
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.
Lawyers for gun rights advocates have asked the court several times to take on a new case, and lay down the toughest constitutional standard for gun restrictions. The court has not agreed to rule on any of those pleas, leaving the issue wide open to be explored first by lower courts.
It is fair to say, as a general matter, that Second Amendment rights are still very much in the very earliest stages of their development. There are only two things that the Supreme Court, so far, has made quite clear: the first is that there is a personal right to have a gun for self-defense in the home, and the second is that the right–whatever its dimensions–“is not unlimited.”
Attorneys Rivkin and Grossman have taken the first of those declarations, and translated it into a broad definition of “self-defense”–that is, the capacity to ward off multiple intruders by using guns with a sizable number of bullets in the magazine. But that does not provide a great deal of clarity by itself: how many intruders must one imagine might have to be warded off and how much weaponry is needed to do the job if one, say, assumes there might be a marauding mob?
In another part of their column that is not quoted above, Rivkin and Grossman suggest that “the courts are no more likely to allow government to undermine the Second Amendment than to undermine the First [Amendment].” But restrictions on First Amendment rights have long had to survive the most rigorous constitutional test, and that has not yet been established for Second Amendment rights.
At this stage in the nation’s revived (or ongoing) debate over guns, it is entirely natural for gun rights advocates to assume that they already have a fulsome Second Amendment on their side of the debate, and for gun control advocates to assume that the Supreme Court has left legislatures with a very broad discretion to act to protect public safety. Those, however, are only assumptions, and cannot even be treated as predictions.
Customarily, it takes a very long time, constitutionally speaking, for a newly declared right to assume anything close to its fully developed shape. How long did it take for racial equality, or gender equality, to even begin to approach a matured state? In reality, those notions of equality even today are still in some state of flux.
For all of the Supreme Court’s insistence in 2008 that the personal right to have a gun for self-defense can be traced all the way back to the nation’s founding, and even before, the reality is that that Second Amendment right is really only five years old now. It has a good deal of growing up yet to do.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.