The U.S. Supreme Court heard oral arguments this week in a case (McDonald v. City of Chicago) that will decide whether the Second Amendment, which protects the right to keep and bear arms, should apply to the states as well as the federal government. A ruling against the City of Chicago would make guns more difficult to regulate. In arguing that state and local regulations of firearms should be limited by a constitutional right to bear arms, the lawyer for Otis McDonald, the city's challenger, compared the Second Amendment to the First Amendment. The right to worship, he says, doesn't mean that you have "to choose from a select menu that's offered to you by the government. And likewise, with arms, if you have an arm, which is the kind that people would want to have for self-defense, then that arm cannot be banned entirely."
Are guns just like religions?
Unlike freedom of religion, which has long been recognized as a fundamental right, the constitutional right to bear arms is of recent vintage. Only in 2008, by a 5-4 vote in District of Columbia v. Heller, did the Court recognize that the Second Amendment confers an individual right to keep and bear arms. The context was a D.C. law that generally prohibited the possession and registration of handguns while allowing possession of other firearms such as long guns. In his opinion for the Court in Heller, Justice Antonin Scalia ridiculed the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. Asserting that the Court does not interpret constitutional rights in such a limited way, and citing the First Amendment's Speech Clause and the Fourth Amendment, Scalia concluded that the Second Amendment protects all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
In disavowing the 18th century guns argument, Justice Scalia neglected his own reasoning in the Court's Ten Commandments cases, where he voted to uphold commandments displays in county courthouses and on state capitol grounds. Because the Founders were Christians, he argued, it is appropriate for the government to display Christian symbols. Because the Commandments are Jewish and Christian, he wrote, it is acceptable for the government to promote monotheism. Non-monotheists, however, are dismissed from Justice Scalia's First Amendment. As he concluded: with respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.
In other words, Justice Scalia's Constitution disrespects ancient traditions much older than Christianity (Hinduism, Buddhism, or Greek Philosophy, e.g.) as well as modern atheism, which flourished in the 18th century. Yet it also welcomes modern weapons of all sorts into its ambit. Justice Scalia defends these odd conclusions on the grounds of originalism. Originalism allegedly gives the constitutional text the meaning it bore when it was adopted by the people. An interpretation of the Constitution that defines guns more broadly than religions, however, is way off target.