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Clinton's Missed Opportunity on Guns

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Compared with the rest of the third presidential debate Wednesday night, the opening conversation about the Constitution was practically Lincoln-Douglas-like as the candidates answered questions and didn't interrupt each other. But the discussion of the seminal gun control case D.C. v. Heller was borderline incomprehensible unless you've recently taken constitutional law. And in giving an answer intended to express moderation on gun rights, Hillary Clinton missed a chance to express support for the original meaning of the Constitution.

Debate moderator Chris Wallace of Fox News asked a series of substantive questions about gun rights. In particular, he asked about the 2008 Heller case, in which the U.S. Supreme Court held by a 5-4 vote that the Second Amendment blocked regulations in Washington that essentially barred ownership of handguns.

Clinton rightly criticized the Heller decision when it came out. But in the debate, as the Democratic nominee, she soft-pedaled her opposition. Pressed by Donald Trump, she admitted to having been angry about it. But she said she only disagreed with the way the case applied the Second Amendment. And, crucially, she said she supported Second Amendment rights -- including what she called an "individual right to bear arms."

QuickTake Guns in America

As a matter of pure politics, you can see why Clinton would have said she supports an individual right to bear arms. As Republicans flee their party's nominee, it must seem attractive to try to gain some votes from gun owners, even if most card-carrying National Rifle Association members are probably beyond her reach. Saying the words "individual right to bear arms" is a signal of moderation, and maybe it would help attract some centrist voters.

But it was also unfortunate, because Clinton missed a chance to say that she thinks the original meaning of the Constitution is relevant to interpreting the document -- a view that Trump said he held.

Clinton could have turned to the language of the Second Amendment, which reads in full: "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."           

Notably, this text says nothing about individual rights. The right conferred is a right "of the people." That's the very definition of a collective right, not an individual one.

Of course, the Fourth Amendment also speaks of the "the right of the people" to security from unreasonable searches and seizures. And that's been interpreted as an individual right.

But there's a big difference. The first part of the Second Amendment explains why the right exists -- and why it belongs to the people.

The amendment is to ensure the existence of a "well-regulated militia." The Framers' generation understood exactly what that meant: state militias, regulated by state laws. Classical republican political thought loved militias and hated standing armies. Standing armies made of professional soldiers were an invitation to Roman-style military domination of politics through a Praetorian guard. Militias, by contrast, were made of part-time citizen-soldiers. They were therefore of "the people" -- and not a threat to democracy.

That's why the amendment says the point of militias is to protect the security of a "free state." Militias protect free states, goes the republican theory -- standing armies endanger liberty.

Indeed, so powerful was the republican (and Republican) commitment to militias that James Madison relied on them in the War of 1812 -- to disastrous effect, when many militias refused to cross the border and invade Canada.

But in the Heller case, Justice Antonia Scalia basically denied the history of the amendment's language and meaning. The details deserve their own treatment, but in essence he claimed that because the words "bear arms" could be used outside the context of militias, the amendment should be read to cover carrying weapons outside the well-regulated context of which the Constitution speaks.

That's nonsense, and Heller is an embarrassment to historically informed constitutional interpretation. The idea that the Framers would have thought it should be applied to allow private citizens to carry concealed handguns isn’t intellectually plausible.

Clinton should have said so. At the very least, she should not have conceded that the Constitution properly interpreted requires an individual right to bear arms. It protects the collective right to a state-run, state-regulated militia. And sincerely original justices would overturn the Heller case.

  1. Part of the First Amendment mentions the "right of the people peaceably to assemble." That's because assembly is a collective action.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net