The Right to Shoot: A Modest Proposal

The Supreme Court recently heard arguments about what Linda Greenhouse in the New York Times (March 19, 2008) called “the right to own a gun for personal use.” At issue is a District of Columbia ban on handguns, which the Court is expected to overturn when it rules. Solicitor General Paul Clement is worried that the justices may go so far as to undermine existing federal restrictions on machine guns; he urged a cautious decision, claiming that “reasonable restrictions on firearms” were in place at the time the constitution was adopted (but not saying what those were).

Machine guns for personal use is an interesting idea—I am surprised that the Solicitor General came out against it. Vice President Cheney is said to be furious at Clement’s intervention. He wants an unqualified endorsement of the constitutional right “to keep common handguns and usable firearms for lawful self-defense in the home.”

But if the Vice President reflected on his own experience, he might be led to a more radical position. For if guns are personally owned and used, a lot of people will be accidentally shot. This is an inevitable consequence of the constitutional right to bear arms, and so, it seems to me, the right should be extended to include accidental shooting.
If we don’t extend the law in this way, citizens personally using their guns, exercising their constitutional rights, will be harassed by police investigations and unfairly burdened by civil suits that might ruin them. There is sure to be a great increase in unnecessary litigation inspired by activist lawyers.

The Court should be asked, when it meets to decide the D.C. handgun case, to recognize a further constitutional right to accidentally shoot someone while personally using a gun.

The new right follows from what seems to me an obvious interpretation of the “penumbra” of the Second Amendment. But there are two questions about this interpretation that are sure to be controversial.

First, does the person who is accidentally shot have to be an American citizen? Or does the right include resident aliens (with green cards)? And what about visiting foreigners? Representatives of the tourist industry will certainly raise doubts about the last group. My own belief is that the law in this case should cover anyone who gets within shooting range. Of course, cross-border shootings might make for legal complications.

Second, is this a one-time right? Should we think of allowing only one accidental shooting per person? Or would it be better to allow one accidental shooting each time a gun is personally used? The second option would permit (please note that it wouldn’t require) many more accidental shootings but when constitutional rights are at stake, numbers shouldn’t matter.

Still, I can imagine liberal politicians worrying about public safety and turning this issue into yet another conflict between individual rights and collective interests—and those conflicts have gone badly in the past for defenders of individual rights. But given the most recent Bush appointments, I am ready to say, “Let the Court decide.”

Michael Walzer is the co-editor of Dissent.