American Gunceptionalism

07/23/2012 06:37 pm ET | Updated Sep 22, 2012
  • Geoffrey R. Stone Edward H. Levi Distinguished Service Professor of Law, University of Chicago

In many respects, the United States Constitution has served as a model for constitutions throughout the world. Of the 188 nations that have written constitutions, the vast majority have adopted fundamental guarantees that were first fully articulated in the United States Constitution.

According to research by professors David Law and Mila Vertsteeg, 97 percent of all the world's constitutions now protect the freedom of religion; 97 percent protect the freedom of speech and press; 97 percent protect a right of equality; 97 percent protect the right to private property; 95 percent protect the freedom against unreasonable searches; 94 percent protect the right of assembly; 94 percent prohibit arbitrary arrest or detention; 84 percent forbid cruel and unusual punishment; 84 percent protect the right to vote; 80 percent prohibit ex post facto laws; 72 percent protect the right to present a defense; and 70 percent protect the right to counsel. These freedoms, which were first constitutionalized in the United States, are now widely recognized as fundamental to a free, humane and civilized society.

On the other hand, only 1 percent of all the other nations of the world recognize a constitutional right to keep and bear arms. Of the 188 nations with written constitutions, only Mexico and Guatemala have followed our example.

Every other nation has rejected the notion that individuals have a constitutional right to own guns. This includes such diverse nations as England, China, Brazil, Iceland, India, Portugal, Turkey, Kenya, Israel, Indonesia, Russia, New Zealand, Pakistan, Germany, Argentina, Vietnam, Canada, Japan, Hondouras, Poland, South Africa, Norway, France -- and 162 others. The idea that individuals have a fundamental right to purchase and possess firearms has been resoundingly rejected by 185 of the world's 188 nations. There are few, if any, questions about which the world's nations are in such universal agreement.

But so what? We are, after all, THE United States, and if other nations don't have the good sense to follow our lead, then that's their misfortune. We are who we are, and we're damned proud of it (mass murders notwithstanding).

These data are interesting not only because they show how peculiar we are in this respect, but also because they shed important light on the meaning of the Second Amendment. What did the Framers have in mind? How could they have had such a peculiar and idiosyncratic notion of individual freedom?

A long-standing puzzle about the Second Amendment is what it actually means. The Amendment provides: "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." What is the meaning of this guarantee?

The puzzle turns on which of two possible interpretations of the text makes more sense. The first possible interpretation construes the text as guaranteeing individuals a constitutional right to purchase and possess guns. The second possible interpretation construes the text as guaranteeing individuals a constitutional right to purchase and possess guns for the purpose of serving in the militia. Now, go back and re-read the text.

In its 2008 decision in District of Columbia v. Heller, the Supreme Court, in a sharply-divided 5 to 4 decision, embraced the first of these interpretations. Justice Scalia, joined by Justices Roberts, Kennedy, Thomas and Alito, argued that the Second Amendment guarantees individuals a constitutional right to own guns for any lawful purpose, whether or not their gun ownership is related in any way to serving in the "militia."

In a dissenting opinion, Justice Stevens, joined by Justices Breyer, Ginsburg and Souter, reasoned that a plain reading of the text of the Second Amendment makes clear that it was not intended by the Framers to guarantee a personal right of individuals to own guns for any lawful purpose, but to ensure -- at a time when there were no professional police forces, no national guards and no standing armies - that the government would have the capacity to call up an appropriately equipped volunteer militia whenever it was needed to help preserve the peace.

Thus, in the view of the four dissenting justices, the constitutional right to own a gun was not an individual right, analogous to the freedom of religion, the freedom of speech or the right to counsel, but an instrumental right designed for a very specific and now largely obsolete purpose.

The decision of 99 percent of the world's other nations not to guarantee a constitutional right to own guns is a compelling affirmation of the reasoning of the dissenters in Heller. In a world in which there are now organized and well-armed police forces, national guards and standing armies, there is no longer any need for a citizen militia, and such entities no longer exist in the United States or in most other nations of the world. The need for individuals to own a gun in order to serve in the militia, which was critical in the 1790s, is now moot.

All that is left, then, is the question whether there is a fundamental personal right to own a gun for the sake of owning a gun, and on that question the nations of the world are in agreement -- there is no such fundamental right, any more than there is a fundamental constitutional right to grow marijuana, to skydive, to drive 80 miles per hour, or to own a pet lion.

By distorting the text and meaning of the Second Amendment and ignoring the common sense judgment of the rest of the civilized world, the five conservative justices in Heller fed into and reinforced the NRA's frenzy about guns in America. And by preventing American citizens from engaging freely in the democratic process to decide for themselves what controls on guns are most sensible, those five justices tragically and needlessly set America apart from the rest of the civilized world -- with predictable consequences.

Perversely, a constitutional provision intended to keep us safe has been twisted by the conservative justices on the Supreme Court into one that endangers us all.