This weekend I posted on the NYT editorial on the gun violence problem in America. As I said there, I think there are things to commend about the editorial’s sentiments, though I found certain aspects of the piece troubling. In particular I was bother by the following quote: “It is not necessary to debate the peculiar wording of the Second Amendment. No right is unlimited and immune from reasonable regulation.”
Aside from the troubling notion of wanting to ignore the constitutional text (though I concede that the wording of the Second Amendment is “peculiar”), the latter comment is patently false. There are any number of constitutional rights that are immune from mere “reasonable regulation.” For example, most speech that is protected by the First Amendment can be regulated only with a compelling interest, not mere reasonableness (it may be perfectly reasonable to want to criminalize the act of burning an American flag in protest, but the mere reasonableness of such a law would not save it). It may be entirely reasonable for a state to desire bench trials for certain felony offenses, rather than jury trials. But the Sixth Amendment guarantees a right to a jury trial in felony cases, no matter how sensible bench trials might seem. It may be entirely reasonable to require a defendant in a complex racketeering prosecution to have a lawyer to represent him. But so long as he is competent to do so, the defendant has a right to represent himself and the mere reasonableness of requiring a lawyer is not enough to overcome his right to self-representation. It might be entirely reasonable to allow the federal Government to avoid the time and expense of grand jury proceedings in felony cases; but the Fifth Amendment requires grand jury indictments.
As I alluded to in the previous post, I would imagine the NYT would be similarly bothered by mere reasonable regulations of certain unenumerated but fundamental liberties. What if the people of Connecticut thought it reasonable – as a way of discouraging adultery – to ban contraceptives? What if Michigan thought it reasonable to limit marriage to one man and one woman? What if Texas thought it reasonable to require physicians who perform abortions to have admitting privileges at a nearby hospital? What if several States thought it reasonable to require women to obtain ultrasounds before obtaining an abortion? Where would the Times be on these “reasonable” regulations?
Mere reasonableness should be permissible as a way of regulating certain conduct. But, alas, constitutional law has diverged from that view. So perhaps maybe, to be charitable, the Times meant something slightly different than what it seems on the face of this statement. Perhaps the paper meant that all restrictions on rights that are permissible are, at a minimum, reasonable – that reasonableness is a necessary, but not always sufficient, condition of regulation. Perhaps the Times should have said that no rights are absolute and some conduct is subject to reasonable regulation, and we believe gun possession falls into that category. Or perhaps the Times should have said that no rights are absolute and every right is subject to some regulation, and we believe there are rational, and in fact compelling, reasons to favor some limits on gun rights, even beyond those specifically enumerated in the Heller case. But as it is written, the editorial’s language reaches too far – farther than the Times would probably be willing to defend. The question is whether we must have reasonable gun restrictions, or compelling ones. I think as a matter of Second Amendment law that the answer may vary depending upon the restriction.
All that said, to be fair, I confess my point here is a bit nit-picky. The broader argument of the editorial is worthy of serious consideration.