Comment & Debate
The Second Amendment 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.” The Supreme Court heard oral arguments on March 18th, 2008 in the case District of Columbia vs. Heller, regarding whether to uphold or overturn the District of Columbia’s ban on handguns. The basis for overturning the ban would be that it violates a citizen’s individual right to bear arms. As such, the Supreme Court asked specifically that the oral arguments heard on March 18th, 2008, address the question of whether there is an individual right to keep and bear arms secured by the Second Amendment, and whether the handgun ban, then, violates this individual right. This goes to the core of the meaning of the Second Amendment.If the Court was to decide that the Second Amendment does not secure an individual right to bear arms, this would have wide-ranging implications for the future of gun laws in America. Gun rights advocates would lose substantial grounds and government regulation of firearms, including such moves as the banning of whole classes of firearms, would likely increase. The Supreme Court is set to decide in June, 2008. In attempting to answer the question of whether the Second Amendment secures an individual right to “keep and bear arms,” we should ask a number of additional questions, of which many relate to historical context. Thus, we may have to look at the Constitution of the United States[1] in relation to another significant document, the American Declaration of Independence[2]. The United States Constitution was passed on September 17, 1787, being preceded by The United States Declaration of Independence, adopted on July 4, 1776 by the original Thirteen Colonies, declaring their independence from Britain. After the Constitution of the United States, on December 15th, 1791, the Bill of Rights (the first ten amendments to the US Constitution [3] appeared. Importantly, James Madison’s Bill of Rights comes at a time (since the 1780s) of an ongoing debate between the Federalists[4] and anti-Federalists[5], who were divided over the amount of power between the federal government and state bodies. All of these early documents and their debates continue today with issues such as determining the meaning and relevance of the various amendments, including the Second Amendment. These documents lead us to a series of important and inter-related questions. Does the “militia clause” (the first clause) dominate the purpose of the Second Amendment, indicating that there is only a right to “keep and bear arms” in the context of forming a militia? And, if there is a “right to keep and bear arms” for the purpose of forming a militia, would that right be an individual right or only a collective one (a right of the militia)? Do collective rights exist? Does “the people,” in the text of the Second Amendment, indicate that the Second Amendment is referring to an individual or a collective right? Is it possible that both an individual and a collective-militia right exist? Can the first and second clauses of the Second Amendment be read somewhat independently? What does the Second Amendment mean by militia? Is the militia an independent organization of armed civilians, or is it a state-run organization such as the National Guard? Is the militia even an applicable concept in modern America, or was the militia only appropriate for the Revolutionary period in American history? How do we interpret “being necessary to the security of a fee State”? Was the militia intended to be an entity that would be a check against government tyranny, or an entity that would help preserve national security? If the intention was to check government tyranny, is there an explanation as to why it was not more explicitly stated in the Second Amendment? If the militia was to be a check on government tyranny, does this necessitate that the Second Amendment secure an individual and independent right to “keep and bear” arms? Is such an independent, individual right (versus a collective right) necessary to the integrity of the process of forming a civilian militia? Or, would a collective right be adequate to enable a militia to check government tyranny? Did the Second Amendment confer an individual right to “keep and bear” arms for self-defense? Can this be read into the Second Amendment, despite the fact that it is not explicitly stated? Was an individual right to arms for self-defense important in the context of the Revolutionary period? Would it have been unreasonable for the Framers to have deprived citizens of this capacity to protect themselves? And what about hunting? Was this essential at the time of the Constitution to individual survival, making an individual right to arms an obvious need? How do we interpret “keep and bear arms”? Can we interpret “keep” and “bear” separately? Here, again, does “keep” have an individual, personal connotation, or a collective-militia connotation? Does “bear” have an individual connotation or only a militia/military connotation? How do we interpret “shall not be infringed”? Does this indicate an individual right is at play here? Where did the Framers stand on all of these questions? What did they say? What have other relevant individuals said throughout American history? What have the courts ruled?
On March 9, 2007 in a blockbuster opinion, the U.S. Court of Appeals for the D.C. Circuit overturned the city’s gun ban, holding that “the Second Amendment protects an individual right to keep and bear arms.”[6]
“JUSTICE SCALIA: I don’t see how there’s any, any, any contradiction between reading the second clause as a — as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State- managed. But why isn’t it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people’s weapons — that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.”
The right to bear arms has become an important, lasting expression to many American individuals of their individual freedom and liberty. There are few symbols as powerful, particularly as the right to bear arms for the purposes of, potentially, joining a militia and fighting a tyrannical government is such a tangible concept. The rights to free speech and religion are much less tangible, and lack the power and threat of violence as a check on government tyranny. Such a symbolic expression of freedom resonates too deeply with many Americans to be deprived.
Further, Tucker writes of the English Bill of Rights: “The bill of rights, 1 W. and M, says Mr. Blackstone, (Vol. 1 p. 143), secures to the subjects of England the right of having arms for their defence, suitable to their condition and degree. In the construction of these game laws it seems to be held, that no person who is not qualified according to law to kill game, hath any right to keep a gun in his house. Now, as no person, (except the game-keeper of a lord or lady of a manor) is admitted to be qualified to kill game, unless he has 100l. per annum, &c. it follows that no others can keep a gun for their defence; so that the whole nation are completely disarmed, and left at the mercy of the government, under the pretext of preserving the breed of hares and partridges, for the exclusive use of the independent country gentlemen. In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.”
If the Second Amendment applied only to the collective right of the militia, it would be useless, as no militias exist today in America. It is highly unlikely that the Framers designed an amendment that could expire over time. Instead, their intention was to extend rights to individuals in the Constitution that are lasting.
The 2nd clause of the 2nd Amendment, which relates to the “right of the people to keep and bear arms” (for individual purposes such as self defense), is more important than the first clause, which emphasizes the militia-benefits of a right to bear arms. This interpretation is born out by a historical interpretation of the demands of this past era, in which many individuals owned guns that were not eligible for service in the militia and yet who owned guns and needed to use them for various purposes.
The language of the Second Amendment creates a situation in which the right to bear arms applies only to the militia. The second amendment reads, “A well regulated militia, being necessary to the security of a free State, the right of the people to bear Arms, shall not be infringed.” The first clause clearly qualifies any right to bear arms as solely for the purpose of maintaining “a well regulated militia” for “the security of a free state”.
If the intentions of the framers had been to protect an individual right to bear arms, they would have clearly expressed this. Yet, the Second Amendment is not at all clear about an individual right to bear arms. The natural reading of the clause would indicate that the right relates only to the first, qualifying clause that states, “A well regulated militia, being necessary to the security of a free State…” It is a stretch to read into the language an individual right. If this were the case, why wouldn’t they simply have explicitly stated that an “individual right to bear arms should not be infringed”.
“[…]MR. DELLINGER: Mr. Chief Justice, I believe that the phrase ‘the people’ and the phrase ‘the militia’ were really in — in sync with each other. You will see references in the debates of, the Federalist Farmer uses the phrase ‘the people are the militia, the militia are the people.”
– “One of the troublesome aspects of viewing this as a right of personal use is that that is the kind of fundamental liberty interest that would create a real potential for disruption. Once you unmoor it from — or untether it from its connection to the protection of the State militia, you have the kind of right that could easily be restrictions on State and local governments”…
This argument is simply here to remind the reader that no individual right is unfettered and absolute. Reasonable regulations can be placed on an individual right to bear arms. This argument can go both ways in making an individual right to bear arms more moderate, and subsequently more tolerable to both sides in the debate.
George Washington, Thomas Jefferson, Benjamin Franklin, and John Adams were among a number of framers of the constitution who clearly expressed the importance of an individual right to bear arms. (see the argument page for quotes from them)
– “JUSTICE KENNEDY: You think Madison was guided by the experience and the expressions of the right in English law, including the Bill of Rights of 1689?
GENERAL CLEMENT: I do, Justice Kennedy, and I think in that regard it is telling that — I mean, there are a variety of provisions in our Bill of Rights that were borrowed from the English Bill of Rights. Two very principal ones are the right to petition the government and the right to keep and bear arms. I don’t think it’s an accident.”
It is unrealistic to believe that the framers of the constitution would, in creating the Second Amendment, limit the right to keep and bear arms to only those US citizens who were eligible for militia service. There were too many US citizens at the time that were not eligible for militia or military service – either because they were too old, too young, or because they were women – whom nevertheless needed to be able to use guns in self-defense against criminals, wildlife, or Indians and/or in order to hunt, eat, and survive.
It is true that American history is filled with violence and bias towards ethnic minorities. However, the path to resolving this issue is to ensure every individual, regardless of class, race, or gender, has the right to bear arms, not to restrict that right to a militia.
James Madison, Alexander Hamilton, John Adams, and other Federalists were largely opposed to a individual right to bear arms on the basis that a powerful, centralized government was important. This government was likely to be more stable if individuals did not bear arms.
– “JUSTICE GINSBURG: If we’re going back to the English Bill of Rights, it was always understood to be subject to the control and limitation and restriction of Parliament. And I don’t think there’s any doubt about that. And that’s what we’re talking about here, are legislative restrictions.”
The primary concern, at the time of the writing of the Second Amendment, was the ability of the militia to aid in the national defense and collective security. There was generally less concern for an individual right to bear arms. Therefore, such an individual right should be deemphasized.
Although the early American documents proclaimed equality for all and a right for all to bear arms, in actuality, this was not the case. Native Americans, African Americans, and other visible minority groups were not given the same rights as those white Americans who immigrated from Europe. Lynchings and other acts of injustice based upon racial difference occurred well into the twentieth century, so it is a misrepresentation of the facts to say every individual had the right to bear arms for self-defense. For much of American history, a large segment of the American population did not even have basic human rights, let alone the right to bear arms.
Blizz v. Commonwealth, in 1982, held that “the right of citizens to bear arms in defense of themselves and the State must be preserved entire.” Dred Scott v. Sanford (1856) ruling suggested a universal individual right to bear arms, writing “It would give to persons of the negro race, who were recognized as citizens in any one State of the Union . . .the full liberty . . .to keep and carry arms wherever they went.”
State v. Buzzard (1842, Ark), Salina v. Blaksley (1905), and United States v. Cruikshank (1875) are among the court decisions finding only a collective right to bear arms to exist.
Cases such as US vs. Miller that were brought to the Supreme Court have contributed to making significant differences of the context in which the Second Amendment can be applied. In US vs. Miller the court established that the Second Amendment “did not guarantee a citizen’s right to possess a sawed-off shotgun”
Throughout the history of the United States, the right to bear arms has been a socio-political necessity.
The use of guns and violence is not a necessity, but a symptom of inequality and a culture of resolving conflict through violence. Arms and violence are a disturbing symptom of socio-political power used by a segment of the population (some white male citizens) to subordinate Native Americans and African-Americans, or to sustain class and gender divisions.
Self-defense was a very likely element of the Framers’ thinking behind the second amendment. It conferred the right to bear arms for the sake of defending against wolves and bears. It also conferred the right to bear arms for the sake of defending against Indians. Additionally, concerns regarding crime and insecurity were very high in the uncertain first years of the Union, making it likely that the 2nd amendment was also intended by the framers to confer a right to protect against criminals.
The 2nd Amendment does not explicitly refer to a right to bear arms for the purpose of self-defense. It only explicitly refers to a right to bear arms for the purpose of upholding “a well regulated Militia, being necessary to the security of a free State.” The 2nd Amendment should not be read as conferring a right that it does not clearly confer; a right to arms for the purpose of self defense. Inferences are insufficient, particularly as evidence can be gathered regarding the intentions of the framers of the Constitution that could cut both for and against the notion that the 2nd amendment was intended to confer an individual right to bear arms for the purpose of self-defense. Because neither inference can be definitely deemed correct, the Constitution must be taken at its explicit word, which gives no mention to self-defense.
The right to bear arms has become an important, lasting expression to many American individuals of their individual freedom and liberty. There are few symbols as powerful, particularly as the right to bear arms for the purposes of, potentially, joining a militia and fighting a tyrannical government is such a tangible concept. The rights to free speech and religion are much less tangible, and lack the power and threat of violence as a check on government tyranny. Such a symbolic expression of freedom resonates too deeply with many Americans to be deprived.
In the modern day, the importance of checking a tyrannical government remains important and relevant, even if the prospect of a citizen militia overthrowing the United States military is now effectively out of reach. There are numerous ways in which an armed citizen can check government power:
The difference in the technology the military now employs versus the personal guns individual civilians can have access to is exponentially greater than in the framer’s time. This means that in today’s reality the Second Amendment cannot apply to civilians with the purpose of preparing them to be part of the militia at any day or time.The huge technological advances and military training make it impossible for everyday citizens to be part of a defense force like the ” militia”.
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