Jeff Snyder is an attorney in New York City and is the “Gun Rights” columnist for American Handgunner magazine. This article is adapted from columns he wrote in the November/December 2000, January/February 2001, and May/June 2001 issues of that magazine. He is the author of Nation of Cowards: Essays on the Ethics of Gun Control (Accurate Press, 2001).
The statements of rights in the Bill of Rights are categorical and contain no exceptions. This form suggests that the rights referred to do not vary to suit the circumstance, are not to be “outweighed” in balancing tests with other rights or interests, and are not subject to unstated exceptions: Congress shall make no law abridging the freedom of speech or of the press; the right to keep and bear arms shall not be infringed; the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and so forth. Qualifications such as, “unless presenting a clear and present danger,” “except to the extent inconsistent with public safety,” or “unless outweighed by a compelling state interest” simply are not there.
Are those categorical statements of rights mere rhetorical excesses cleverly penned to overcome the objections of the Anti-Federalists to the new federal government, while the Federalists well knew that the actual rights were and would be subject to numerous exceptions? Are our rights in fact subject to “reasonable” regulation in the interest of public safety or for other good purpose?
Before inquiring into this matter, it is necessary to make some preliminary observations to avoid misunderstanding. In arguing, as I will below, that our rights are not subject to any exceptions, I do not wish to be mistaken as arguing that we therefore may not be held accountable for the consequences of the exercise of our rights, that we may not be punished if we violate the rights of others, or that we may not be deprived of life or liberty by due process of law.
I distinguish between exceptions to a right, by which I mean instances in which the right is declared to be not available on grounds exterior to the right (such as “public safety”) even though the exceptions otherwise fall completely within the ambit of the right, and the limits of a right, by which I mean, first, the activities within the ambit of the right, judged by historical understanding and historical practices and customs, and, second, how far the right extends vis-à-vis others.
Thus I would consider the question of whether the right to keep and bear arms includes a right to keep or carry stinger missiles or nuclear or biological weapons a question of the limits of the right, not of exceptions to the right. Historical customs and practices may reveal that our forefathers understood the right to include only such arms as are suitable to private and individual self-defense and the basic weapons required for service in a militia, and not weapons whose overly powerful or indiscriminate nature render them specialized weapons of mass destruction suitable for use only in war. To use my terminology, cannons, tanks, stinger missiles, and the like would be outside the ambit of the right, rather than exceptions to it.
As noted, there is a second sense in which rights have limits, namely, how far they extend as against the rights of others. In this regard, it is important to note that the rights in the Bill of Rights are against the government; they are not rights against private individuals. They proclaim that the government may not exercise power over certain activities; as between you and the government, it must suffer you to engage in the activity that is within the compass of your right. Government has no rights, only powers. Therefore, your right simply disempowers it with respect to the protected activities. However, as among persons with equal rights entitled to mutual respect, one right is not a license to violate another. As between private persons, the limits of a right are always the rights of others.
Thus it is never a violation or infringement of your right for government to punish you for violating the rights of others (presuming, of course, that this is done through due process of law), and your “right” does not grant you license to violate, or grant you immunity from the consequences of violating, the rights of others.
For example, the Second Amendment denies the power to the federal government to infringe the right to keep and bear arms. The right exists against the government only, and not private individuals. It prevents government from imposing a prior restraint on the keeping and bearing of arms (such as a permit requirement) or from criminalizing the mere keeping and bearing of arms. But among private individuals, the right is limited by the rights of others. If a movie-theater owner wishes to exclude persons who carry weapons, his property rights entitle him to do so, and if you carry in violation of his rights, you are trespassing and the government can punish you for violating his property rights.
Are There Exceptions?
With these distinctions and qualifications in mind, let’s examine whether there can be exceptions to the rights in the Bill of Rights. Take, for example, what is possibly the most bedrock, “common sense” gun restriction on the books: the prohibition against the ownership or possession of firearms by convicted felons. (We mean of course those who have been convicted of a felony but are no longer serving time or on probation, and have been fully released back into society.)
There seems to be no comprehensive historical or legal investigation of this exception. The restriction seems not to have existed at the time the right to keep and bear arms was memorialized in the 1689 English or 1789 American Bill of Rights. The great commentator on the English common law, Sir William Blackstone, makes no reference to such an exception in discussing the rights of Englishmen.
I asked historian Joyce Lee Malcolm, author of To Keep and Bear Arms: The Origins of an Anglo-American Right, whether she was aware of such a prohibition during the seventeenth and eighteenth centuries. She said that she was not, but that it would have been something of a non-issue because most felonies in those days were punished by death. The “felon exception” thus becomes an issue only in subsequent generations, when for humanitarian or other reasons more and more felonies are punishable solely by imprisonment or, viewed from the reverse perspective, fewer and fewer serious crimes (that is, crimes worthy of punishment by death) are termed felonies.[1]
Clayton Cramer’s excellent history of the courts’ treatment of the right to keep and bear arms, For the Defense of Themselves and the State, contains intermittent discussions of the exception. The first American court cases to discuss it appear in the early 1900s, suggesting that the state statutes creating the exception were also enacted at about that time. Early and modern state court cases upholding the exception did so on the dubious ground that the Second Amendment does not apply to state legislation and does not prevent the enactment of gun restrictions for the public welfare. The exception was enacted into federal law in the Gun Control Act of 1968.
Later state court cases upheld the statutes outlawing possession or ownership by felons against challenges under rights to keep and bear arms stated in state constitutions. In this regard, the experience of New Hampshire is instructive.[2] In 1978 a proposed constitutional amendment recognizing the right to keep and bear arms was put to the voters. The amendment, however, contained clauses permitting the state to regulate the manner of carrying weapons and excluding felons. It failed. In 1981 it was again put to a vote of the people, this time without the two clauses, and it passed.
In 1990, however, the New Hampshire Supreme Court upheld the state’s statute prohibiting possession of firearms by felons against challenge under the New Hampshire right to keep and bear arms. Note the degree of respect afforded to the question of the rights of persons expressed in the heart of the court’s argument in support of its decision:
As the defendant concedes, the State constitutional right to bear arms is not absolute and may be subject to restriction and regulation. Assuming that the right to bear arms is no more absolute than the right of free speech . . . a restriction . . . may be sustained if it “narrowly serve[s] a significant government interest.” . . . The government interest served by the statute, protection of human life and property, is patently significant. [Footnotes and references omitted.]
Thus the court upheld a man’s conviction and the statute on the basis of a concession by the defendant (readily accepted by the court without citation to any authority) and an assumption! Actually, more than one assumption, for implicit in the court’s statement that the felon exception serves “the protection of human life and property” is the belief that felons (despite the fact that numerous felonies are not violent crimes against persons) will likely commit crimes with guns. Such is the precedent, such is the intellectual rigor and concern, that establishes a permanent exception to a right. Consider, in this light, the notion that the courts are the guardians of our rights.
Can a convicted felon be denied his right to free speech or freedom of the press? Can he be denied the right to assemble or to the free exercise of his religion? May convicted felons be subject to unreasonable and warrantless searches and seizures? May they, on arrest for a subsequent crime, be denied due process of law and the right to trial by jury; and, when convicted, may they be subject to cruel and unusual punishment? Surely crime would plummet if these rights, too, were subject to a felon exception for the sake of public safety, and if the police could summarily execute felons they suspected of committing crimes. But if those rights must be respected, why is the right to keep and bear arms a different kind of right that admits of such an exception?
Majority Rule?
The problem is that an exception has been introduced to the right whose scope is defined by action of the majority (through legislative action and subsequently through a majority of a panel of judges). That is fatal to the right because it makes the right a captive of majority rule. The concept of “public safety” has no inherent limiting principle that establishes its outer boundaries. Those who have doubts need only consider the ever-expanding list of federal and state disqualifications for the ownership of arms. While the suggestion above regarding the summary execution of convicted felons seems outrageous, it does so not on grounds of public safety but only because of native concepts of justice which require that the individual is presumed innocent and must be proven guilty before being punished—concepts that rest, at bottom, on the inherent dignity of the individual. That we do not fully accord the same treatment to convicted felons, taking each individually, indicates only that we now base our treatment of one another not on the principles of justice established at common law, but on probabilistic assessments of predilections for guilty behavior. Now we punish people in advance because of what they might do, based on our assumptions about (and if the legislators are being especially careful, actual statistical evidence indicating) the predilections of people like them.
So first we may note that if a right in the Bill of Rights is subject to an exception whose scope is defined by action of the majority (the legislative process), the right has been rendered subject to the will of the majority. That is, it has ceased to exist and has become a creature of legislative grace.
This issue bears further examination, however, because so many gun owners readily concede that their right to keep and bear arms is “not absolute” and is subject to “reasonable” regulation. This concession to moderation or reasonableness is fatal to the right. Yes, there are people who should not have guns. However, the point of the Second Amendment is precisely to deny government the power to decide who those people are, just as the point of the First Amendment is to deny government the power to decide what you may read and hear. Rights are not reasonable, and are not to be made reasonable, because government itself is not reason; it is force.
If a right is subject to an exception, any exception, then the principle on which the exception is founded is, of necessity, superior to the right itself; else there is no exception. If the felon exception, or the prohibition of possession by those subject to restraining orders, those dishonorably discharged from the armed services, or those who are habitual users of marijuana (all current disqualifications under federal law), is justifiable because it is necessary or desirable to protect the public, then clearly the interest of “public safety” is superior to any individual’s right to keep and bear arms. In sum, public safety trumps a “right” to keep and bear arms; since it is superior to the “right,” it absolutely defines the scope of the “right.”
But the concept of “public safety” has no inherent specific content that would impose a stopping point or define a boundary beyond which it does not extend. For example, if the legislature determined that an absolute prohibition against the private ownership or possession of arms would or could be expected to cause a reduction in the amount of crimes committed with guns, such a law would still have the purpose of securing “public health or safety,” and thus be within the scope of the state’s “police power.” Yet obviously the “right” to keep and bear arms in this case would completely disappear. Thus an exception to the “right” on grounds of public safety logically destroys the “right.”
The list of federal and state disqualifications for the ownership or possession of arms continues to expand, and Congress and the states have embarked on a new goal of keeping all guns out of certain hallowed locations (post offices and other government buildings, airports, and school zones), also in the interest of safety. This offers a partial proof that the concept of “public safety” has no logical stopping place.
Try to determine how far the government could go on grounds of public safety. For example, why is there an interest in public safety only in government buildings, airports, and school zones? Why not hospitals—indeed, all public property and all businesses open to the public? If you find a stopping place that leaves any private person with the right to keep and bear arms, explain why the concept of “public safety” indicates that you must stop there and not go any further.
The Purpose of Rights
Another way in which rights are often limited is to “interpret” them in light of the purpose they are supposed to achieve. For example, those who oppose the private ownership of arms sometimes assert that the purpose of the Second Amendment is related to the maintenance of militias. Since militias no longer exist and are a discredited and ineffectual means of securing the common defense in the modern world, the Second Amendment has been rendered obsolete and may therefore be ignored. Is this a legitimate way of imposing a limitation on the scope of a right, of rendering it less than absolute?
While the “interpretation” cited above is a misreading of both the words and history of the Second Amendment, the effect of interpreting a right by reference to its purpose is nonetheless revealed: it, too, leads to the destruction of the right!
An example involving a right that the Supreme Court actually pretends to recognize from time to time will perhaps be more convincing. The Supreme Court has discovered that the purpose of the Fourth Amendment is to protect people’s “reasonable expectations of privacy,” and so this has become the Court’s standard for determining how far law enforcement can go in conducting searches and seizures. Because people’s expectations of privacy vary in different circumstances, the Court has concluded that our Fourth Amendment rights similarly vary.
So, the law of the land now proclaims that your rights against search and seizure are stronger in your home than in your car. They are better if you own than if you rent and if you build a solid privacy fence around your yard than if you put up a chain-link fence. You have virtually no rights if surveyed from above; since anyone can see what you’re doing from up there, you cannot possibly have a reasonable expectation of privacy. Your rights are stronger if you are a passenger in a car than if you are the driver. Personal papers are more protected than business records; you essentially have no rights in records of your phone calls or banking transactions. A different Fourth Amendment rule for every occasion!
The remarkable upshot of the Court’s interpretation of the Fourth Amendment in light of its purpose is: never before has our government had so much power to search and seize your person, personal information, and property without probable cause and without a warrant. And yet never before has the purpose of the Fourth Amendment been so perfectly and fully achieved!
It is important to realize that the destruction of a right by “interpreting” it in accordance with its purpose does not occur merely because the interpreter picks the “wrong” purpose. It is a necessary consequence of the very process. To “interpret” a right in light of its purpose is to render the right a means to an end. This act immediately devalues and dethrones the right. In a relationship between means and end, the end, or goal, is always superior to the means. The means is only a way to achieve the goal. Primacy is accorded to the goal; if the means do not quite work, the means must be altered, if not abandoned, to achieve the goal.
By creating a relationship of means and end between a right and its purpose, we create a feedback loop in which the means is constantly re-evaluated and adjusted in light of the degree to which it is achieving the purpose. This process also has no logical stopping point and can also lead to the complete re-definition of the original chosen means (that is, the complete evisceration of the right). The Court’s Fourth Amendment jurisprudence provides ample evidence and proof of this.
With the foregoing, then, I hope to have provided some basis for advancing the following claim: A right, to be a right, must be absolute, that is, subject to no exceptions, and held or respected as an end in itself, not as a means to some other end. Otherwise, it does not stand outside and above the law, but becomes subject to it, a mere creature of legislative action, majority rule, and the peripatetic opinions of judges. If the right is not absolute, you absolutely have no right.
Notes
- 1. It is possible to argue that felons can be excluded because they are not one of “the people” referred to in the Second Amendment. This harkens back to the old sense of a felon as an “outcast” of society, which in turn relates to the historical fact that, in ancient times, persons who committed particularly egregious crimes were actually cast out of the city or community that protected them. Thus it would be consistent to argue that a person whose crime was so egregious as to warrant death or status as an outcast lost his right to arms with which to defend himself (that is, society has either decided he should die or does not care if he lives). This is a far cry from what a “felon” is now, however. Today a felony is simply any crime punishable by more than one year in prison, and includes such crimes as possessing a few too many ounces of marijuana.
- 2. What follows is drawn from Clayton E. Cramer, For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms (New York: Praeger, 1994), pp. 240-41.