Freedom to Avoid War Zones

The argument for arming teachers demonstrates the flaws in Second Amendment jurisprudence.

Retired U.S. Supreme Court Justice John Paul Stevens departs the funeral of U.S. Supreme Court Associate Justice Antonin Scalia in Washington on Feb. 20, 2016.
Retired U.S. Supreme Court Justice John Paul Stevens departs the funeral of U.S. Supreme Court Associate Justice Antonin Scalia in Washington on Feb. 20, 2016. Carlos Barria/Reuters

Nearly two weeks after the horrific shooting spree that ended with the deaths of 17 people in a Florida school, the national conversation about guns has stutter-stepped its way into intriguing new places. On the one hand, teen activists have redefined the terms of the gun control debate, sustaining media attention, organizing protests, and taking on the NRA in direct and powerful ways. These students wrong-footed the gun lobby a dozen times just last week, helping to drive gun advocates further down the darkest tunnels of authoritarianism, threats, and fabrication. Donald Trump, bungling his way into the conversation, has pushed the distracting and dangerous proposal to arm teachers in the classroom.

Let’s put to one side all of the unequivocal and damning evidence suggesting that this is a dreadful idea from a practical and policy standpoint. It’s worth standing back and thinking about what this would mean as a matter of personal liberty. Arming teachers in public schools (places children are required by law to appear each day) puts into the starkest possible relief the central flaw in our recent gun jurisprudence: privileging the freedom of gun owners over the freedom of everyone else to be safe from guns. The majorities in the U.S. Supreme Court’s more recent Second Amendment cases almost completely ignored this countervailing liberty interest. Yet the idea of putting guns in schools highlights the problem.

When the court decided in 2008, for the first time in American history, that the Second Amendment created an individual right to own handguns in the home for self-protection, it left open as many practical questions as it resolved. Indeed, in the 10 intervening years the court has done little to clarify what Justice Antonin Scalia was doing in that case. In his dissent in District of Columbia v. Heller, Justice John Paul Stevens noted that the Second Amendment itself did not exist to give unfettered rights to gun owners at the expense of communal interests to be safe from guns via sensible regulation. Rather its purpose was to balance these rights, allowing for such regulations “so long as they do not interfere with the preservation of a well-regulated militia.”

Two years later, when the high court decided to extend the Second Amendment right discovered in Heller to states in McDonald v. Chicago, Justice Stevens expanded on this point. The problem, he explained, is that “firearms have a fundamentally ambivalent relationship to liberty” especially once they leave the home.

When considering the right to possess a gun in the home for self-defense, Justice Stevens said the argument of gun owners “has real force” while the interest of the state to regulate the guns “is somewhat weaker.” The decision to keep a loaded firearm in the home to defend one’s family or property, he wrote, is comparable “to decisions about the education and upbringing of one’s children.” It is ultimately up to the head of the household, Justice Stevens noted, to make the calculation of whether “the desired safety benefits outweigh the risks.”

This argument, however, loses significant quantities of punch once the gun owner steps outdoors and joins the rest of society in public spaces. At this point we must at least acknowledge that, as Justice Stevens put it, “liberty is on both sides of the equation,” because guns “have a unique potential to facilitate death and destruction and thereby to destabilize ordered liberty.” As Stevens then explained:

Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence. And while granting you the right to own a handgun might make you safer on any given day—assuming the handgun’s marginal contribution to self-defense outweighs its marginal contribution to the risk of accident, suicide, and criminal mischief—it may make you and the community you live in less safe overall, owing to the increased number of handguns in circulation.

In other words, just because an individual might have a right to make a personal decision about how to protect his family at home does not mean he gets to override the rights of others who have reached a different conclusion.

This brings us to the problems of placing guns in schools and, in particular, guns in the hands of our kids’ teachers. In the United States, of course, virtually all states have compulsory education laws that require almost all parents to send their children to school. Failure to comply with those laws, moreover, is punishable by fines or even prison. So, for parents with neither the money for private school nor the time for homeschooling, this means their kids are going to public schools.

In the days since the president floated his ideas about arming public school teachers we have learned that, in fact, in jurisdictions around the country, teachers are already armed. We have also learned that parents don’t always know which teachers are carrying weapons, and that—at least in Ohio and Utah—parents are not even allowed to inquire which teachers are carrying.

Which means that parents whose children—as a result of race and income and gender—are already susceptible to vastly higher rates of violence and discipline at school, are not able to make any kind of informed decision about the potential dangers in their child’s classroom, and are also not at liberty to withdraw their child from school. They have precisely no freedom to know whether their child’s teacher is armed, and they have become captives to a system in which they have no control as parents over the costs and benefits of having a gun near their children. That was exactly the cost/benefit Stevens conceded should be afforded to homeowners in McDonald. Stevens’ fundamental point, though, about the need to recognize the competing liberty interests of those who do not want to be captives to guns becomes all the more dramatic and prescient in a world where teachers are armed.

Whenever we talk about the issue of guns, far too much emphasis is put on the liberty interests and individual rights of the gun owners. But there’s another side to the liberty coin that gets far too little attention, and that is the freedom of those who wish to live in a society—and send their children to schools—to make their own considered decisions about personal safety and risk. Because, as Stevens was careful to caution in McDonald, guns do indeed cause permanent and irreversible harm. In addition to the teachers who are telling the president that they don’t want to pack heat in the science lab, the rights of parents who don’t want to send their kids into a war zone should have far greater force in this debate.