Conceptualizing American Gun Rights for the Common Good

A Classical Legal look at the Second Amendment of the United States' Constitution

The New Digest is pleased to present a guest post from Jamie McWilliam, who holds a J.D. from Harvard Law School and a B.S. in mechanical and aerospace engineering from Montana State University, and is currently a law clerk on the United States Court of Appeals for the Ninth Circuit. His scholarship covers a variety of topics, with a particular focus on the application of natural law principles in the practice of law. His latest article, “A Classical Legal Interpretation of the Second Amendment”, was recently published in the Texas Review of Law & Politics. For a contrasting perspective on the application of classical legal principles to Second Amendment issues, see Darrell A.H. Miller, “Common Good Gun Rights.”

The United States was founded on the bedrock of the classical legal tradition. Founders from James Madison to Thomas Jefferson were well-versed in the tradition that has its roots in thinkers like Cicero and St. Thomas Aquinas. They were therefore quite aware of the classical view that law must be oriented to the “common good.” What that means for our Constitution generally has been a topic of debate for some time now. But one area that is particularly fraught involves our relatively unique constitutional protection of gun rights. This essay—and the law review article it summarizes—argues that reading the Second Amendment with an eye to the common good provides a conception of gun rights that is simultaneously robust while still allowing legislatures to enact laws that secure public safety.

For those readers unfamiliar, a centerpiece of the classical legal tradition is Aquinas’s definition of law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” To the positivist, the requirements that law be promulgated by one having care of the community might be familiar. But the classical tradition goes further by imposing two substantive requirements: First, the promulgated ordinance must be “of reason.” Said differently, it must be consistent with and derived from those natural principles that we are able to ascertain by reason (the natural law). Second, the ordinance must be “for the common good.”

The natural law provides general principles of obligation that we are theoretically able to reason to—sometimes as broad as “do good and avoid evil.” While these principles are binding in their own right, they are often underdetermined as applied to real-world situations, so positive law must be enacted to give them concrete form. A classic example is speed limits: the natural law may provide a general principle that people should refrain from acting in a way that endangers innocent lives, but does this mean that a residential speed limit should be 20 MPH or 30 MPH? Neither speed is required by the principle, but both are consistent with it, and so lawmakers are free to pick one and either decision is consistent with natural law. This does not mean that lawmakers are free to choose any speed limit. A speed limit of 5 MPH might protect innocent lives but also is so inefficient that it unnecessarily impedes the common good of society. At the other end of the spectrum, there is a real rational limit on how high the speed limit should be—100 MPH through a narrow residential street, for example, is clearly beyond the rational bounds of safety. The natural law therefore imposes real constraints on the decisions of lawmakers.

This narrowing function—whereby underdetermined natural principles are given more specific form through the enactment of positive law—continues within the hierarchies of posited law as well. A constitution may partially determine a natural principle but leave room for further determination through legislation. The legislature might then provide further specificity while allowing for further expounding of the principle through agency regulations. Each step of determination narrows the scope of possible further determination, with regulatory decisions constrained by a legislative principle, legislation by a constitution, and a constitution by the natural principle itself. Legal systems with additional levels of decision-making would have additional steps of determination. But in the classical conception, all laws are ultimately specific implementations of a broader principle of reason.

Law must also be oriented to the common good. What the common good is, is a complex question. In a sense it is easier to talk about what it is not. At the most fundamental level, the common good is not a private good. This means that the common good is not the good of the ruler—benefiting the state apparatus at the expense of its subjects. Tyranny is therefore antithetical to the common good. It is also not the good of a majority of citizens. That collection of private goods can easily also become tyrannical to the good of the broader community. But the common good is also not synonymous with a public benefit. Many things that actually harm the common good are pitched as a public benefit. Consider abortion: lawmakers could justify a requirement that doctors perform abortions in terms of the public good, health, and safety. But this facial justification is not sufficient to make the law comport with the common good since it is antithetical to the natural law principle of protecting innocent life.

Instead, the common good is that good that harmonizes the interests of the individual with that of the community, giving to each their due so that they can flourish individually and have the resources to contribute to a flourishing community. But how do we know what ultimately causes the flourishing of citizens and justly orders society? Here, we return to the natural principles of reason that underly not only all legal questions, but all moral questions, of which the “good” is one. That is not to say that the common good is coextensive with these principles. Some principles might underly specifically private goods. But all conceptions of the good—including the common good—must ultimately be grounded in these moral principles. In other words, the natural law is more than the common good, but the common good must be determined by the principles of reason that bind us all in conscience.

So, in practice, a classical legal interpretation takes into account these substantive features of law as well as the requirements that the law be promulgated by one having care of the community. Law is the determination by lawmakers of principles of reason. So in the codified legal example, interpretation begins with the promulgated text of the law that embodies that determination. In many cases, understanding the linguistic meaning of the legal text straightforwardly provides the determination that is to be applied. But in the edge case, the text might be underdetermined as applied to a specific set of facts. This does not mean that the interpreter is out of luck. Every law is a specific implementation of higher order principles. So where the text is found to be facially underdetermined, it should be read in light of those principles. In the case of legislation, this means looking to the text of the constitution to ascertain the higher order determination. For constitutional text, one would trace the law back to first principles in order to figure out its application.

Now to bring this framework to bear on a specific legal question: how to approach the question of gun rights recognized by the Second Amendment to the United States Constitution. To ascertain the determination made by its drafters, one must begin with the method of promulgation chosen by them—the text, which reads “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.” Assuming arguendo that the text of the Second Amendment is not fully determined as to every case, it still proves helpful to figuring out what principle of reason—and what good—it was intended to implement. Specifically, the prefatory clause invokes ideas of the militia and the security of the community, suggesting that the Second Amendment was intended to determine a principle such as “it is good to defend oneself and one’s community.” That principle is broad, so the amendment’s drafters chose to implement it in a specific manner: by securing a right to possess and carry certain weapons.

Under the classical conception, this defense principle had three aspects or variations. The first involves self-defense against threats of immediate personal violence. Thomas Aquinas approved of self-defense where the intention was not to harm another but to save one’s own life; harm to the aggressor is an unfortunate but sometimes unavoidable side effect. Protecting innocent life is a natural good, and actions taken to do so in self-defense remain good so long as the actor’s intent is not actually to harm another. Thinkers like Aquinas and Grotius have further suggested that self-defense must be undertaken only when immediately necessary and performed using minimal force. In American jurisprudence, one sees this aspect of the principle analyzed in cases like Heller and Bruen.

Another aspect of the principle is defense of the community against foreign aggression. While peaceful conduct in the abstract is clearly in the common good, it is not always so in practice. Sometimes to capitulate to foreign attack is to relinquish the good of the nation—as St. Augustine explained, “war is waged in order that peace may be obtained.” Yet such defense must be performed under the authority of the sovereign and performed with the right intent and for a just cause. When a sovereign wages war for a just cause—such as to save his citizens from the violence of a foreign invasion—he has performed a natural good as if he had defended his own life.

The final aspect of the defense principle is defense of the community against an unjust ruler. As described above, law must be oriented to the common good—and nothing is more antithetical to the common good than tyranny, which places the good of the ruler above that of his subjects. Classical legal thinkers recognized this and thought it lawful for citizens to resist governmental injustice. As John of Salisbury said, “it is just for public tyrants to be killed and the people to be liberated for obedience to God.” That the drafters of the Second Amendment broadly agreed is evidenced through their writings. As Benjamin Franklin once noted, “Rebellion to tyrants is obedience to God.” But such defense must only be undertaken in a manner that does not undermine the common good more than it helps to secure it.

The broader defense principle then derives an individual good—personal self-defense—and a communal good—defense of the political community from foreign and domestic violence—in one harmonized principle. The individual nature of the personal defense aspect does not remove it from the sphere of the common good, just as a law does not per se support the common good by providing a public benefit. The common good harmonizes the interests of the individual and the community, rather than subjecting either to the other.

Reading the Second Amendment in light of this principle of defense yields certain bounds that constrain lawmakers’ determinations. While there may be room within the scope of the Second Amendment’s prior determination for legislation oriented to the common good, any such determination must be tested for its compliance with the defense principle as narrowed by the Second Amendment. In other words, one must ask whether the legislation infringes on the protection of arms such that it frustrates the people’s ability to defend themselves and their community.

In application, the result is probably different depending upon which of the three circumstances of defense described above is applied. For example, personal defense may require the ability to bear in public an arm sufficient to repel a personal attack. On one hand, this provides real protections for gun rights, since only firearms of a certain type are really useful in self-defense situations. And in order to defend oneself against immediate harm, the tool of defense must be immediately available. But on the other hand, proportionality is a key aspect of the defense principle, so laws regulating the carrying of arms that have a danger out of proportion to the threat would seem to still satisfy the broader principle. In other words, to be oriented to the principle of immediate self-defense, a regulation should not stop a citizen from bearing arms in public of a type minimally necessary to defend against immediate personal violence.

Situations implicating defense against foreign aggressors and unjust rulers are different because they involve a different threat. Since the threat here is posed by an organized state, this aspect of the defense principle as implemented through the Second Amendment may require allowing possession of arms sufficient to resist, collectively, a sovereign’s standing army. As compared to the personal defense aspect described above, this likely means a much more permissive right as to the type of weapons that can be possessed. Yet that does not mean we must have a free-for-all on all conduct involving any weapon. Unlike situations of immediate personal violence, national-scale threats do not arise spontaneously as one walks through the world. So again, laws that regulate the manner of carrying certain arms—so long as it does not abridge one’s ability to possess them up to a certain level—are still consistent with the natural principle. An example is that type of English and early American law prohibiting the carrying of arms “to the terror” of the public. Putting these different aspects of the defense principle together, a classical legal reading of the Second Amendment protects armed defense as a common good—defense of individual safety, as well as defense of the community, all in one.

While Supreme Court Second Amendment jurisprudence isn’t facially grounded in the natural law, its originalist outcomes are consistent with classical principles. This consistency begins with United States v. Cruikshank, the very first Second Amendment challenge to reach the Supreme Court. There, the Court recognized that the right to keep and bear arms “is not a right granted by the Constitution [nor] is it in any manner dependent upon that instrument for its existence.” Following Cruikshank, the Supreme Court developed two modes of analysis for Second Amendment challenges: one focused on the collective right associated with the militia and defense of the community, and one based on the individual right of self-defense. In Presser v. Illinois and United States v. Miller, the Court upheld laws because they did not infringe on the right of the people, in the collective, to own “ordinary military equipment.” In Heller and later cases, the Court has turned its focus to whether a law infringes an individual’s right to bear arms for self-defense. These newer cases are not a break with past precedent. The Court has given a militia-based analysis to cases involving communal self-defense, and one grounded in the individual right where threats of personal violence are at issue. These are not opposites, but instead different sides of the same defense principle that was recognized by Aquinas, was brought to America by the Founders, and has remained consistent from Cruikshank to Rahimi.

A classical reading of the Second Amendment, then, protects the right of the community to defend itself as both a unified body and an aggregation of individuals. This right comports with the natural law principles of defense of self and community and supports the good of both as a common good. This right is strong, but as described above, has real natural limitations outside of which the legislature is free to create rules that further the common good through other rational safety measures. The classical reading also reconciles the tension between the collective and individual rights conceptions of the Second Amendment, for they are both grounded in the same ultimate principle of defense that traces its intellectual history back to Aquinas and beyond.