One of the arguments for gun control laws, even bans on ownership, is based upon a clear misreading of the Second Amendment which states: “A well regulated militia being necessary for a free state, the right of the people to keep and bear arms shall not be infringed.” The confusion enters the argument because of the beginning of the amendment- the introductory clause. The two most recent Supreme Court cases- Heller v. DC and McDonald v. Chicago- were, in effect, 5-4 plurality decisions and plurality decisions generally hold less weight when it comes to upholding a previous decision under the concept of stare decisis. As a result, there could still be challenges to the individual right to bear arms.
Ironically, in many issues groups like libertarians and groups like the ACLU often have great overlap of agreement. For example, both groups often ally with one another over free speech and religious freedom rights, but part ways over the Second Amendment because of this disagreement over the text of the amendment. To really understand the “right,” a little history is definitely in order.
Political theorists in the 18th century were clearly against having standing armies believing they were a danger to personal liberty. This went back to English roots. As early as 1181, King Henry II issued the Assize of Arms which required the possession of arms. After the English civil war, Charles II, using the Game Act of 1671, attempted to disarm the citizenry. This policy was carried on by James who also allowed the quartering of soldiers (the prohibition is enshrined in our 3rd Amendment). In 1689, after James ran off to France, William and Mary subscribed to the Declaration of Rights. Reading that Declaration, one is stricken by similarity to the text of the Second Amendment: “It is necessary for the public safety, that the subjects which are Protestant, should provide and keep arms for their common defense.” The final language codifying these rights stated “as allowed by law” which was a limitation on their use, but not their possession. For example, the gaming laws of England stated that guns could be confiscated for poaching, but that their possession was protected as a matter of right. The Declaration speaks in terms of an individual right. Any interpretation that comes to the opposite conclusion- a collective right- is clearly predicated upon the fundamental individual right.
Blackstone notes the difference between absolute and relative rights and he correctly notes that the “right to bear arms” is absolute and belongs to the individual. The public purpose is to resist the violence of oppression while the private right is based upon a more fundamental natural right- that of self-preservation. This was the political understanding and environment when our Founders began to formulate a government and examine fundamental rights.
To illustrate, the English republican views of Blackstone and others on the relationship between arms and democracy held great influence. In Article I, section 8, there are references to a standing army and civilian control of the military (also in Article II). Realizing, based on years of English history, that standing armies were a threat to liberty, they nonetheless realized that in times of national crisis and foreign threat, the federal government could not wait too long to raise an army. There were two checks instituted. First, Congress could raise an army, but appropriations would be only for two years. Second, the existence of state militias allowed their use as an interim source of manpower until a national party can be formed.
During the ratification process, Virginian George Mason worried that the most effective way to control people was to disarm them and this would then threaten their liberties. Therefore, he said the possession of arms was a fundamental right. using the history of England as Exhibit A, Patrick Henry likewise agonized over the possibility of disarmament of the people by the government. Hence, they argued for a Bill of Rights. Unlike other areas, there was much agreement between the Federalists and Anti-Federalists over the right to bear arms. Noah Webster, for example, said that even though there were checks on the government, the best one was that the citizens were armed and that was the ultimate check on tyranny. Madison echoed these thoughts. In practically every state, the Constitution was ultimately ratified provided some right to bear arms was allowed.
Madison originally wanted these “rights” inserted into existing clauses of the Constitution instead of free-standing on their own. For example, the Second Amendment would become part of Article I, Section 8 and originally read: “the right of the people to keep and bear arms shall not be infringed, a well-armed and well-regulated Militia being the best security for a free country…” In Madison’s own notes, he specifically stated that this right was an individual, not state or collective right. Madison’s attempt to imbed what would become the Bill of Rights in the actual text of the Constitution failed and the Bill of Rights was attached to the end of the text as has every amendment since.
Keeping this history in mind, one cannot fathom the disagreements today. The right to possess and bear arms is an individual right as our Founders clearly believed. The introductory clause is simply that and in no way affects the declaratory clause in the amendment: the right of the people to keep and bear arms shall not be infringed. As was explained best to me, look at it this way: If a teacher says, “Because I will be out tomorrow, there will be no test.” Does it make a difference why there will be no test? He could have said, “Because the copier is broken, there will be no test tomorrow.” Hence, the “A well regulated Militia…” aspect of the 2nd Amendment in no way alters the declaration regarding the right to keep and bear arms just as the reason for canceling the test makes no difference in the fact there will be no test tomorrow.
Most of the opposition to this individual right was swept away, correctly, in the Heller decision. McDonald applied to state and local laws. I find that the dissenting opinion of Stevens in the latter decision is quite disturbing. The Bill of Rights is incorporated as being prohibitions on state laws by virtue of the 14th Amendment. In this case, we have an explicit right articulated- the right keep and bear arms. Stevens has a problem with incorporating that explicit right with regards to the states. Yet, in other areas where “rights” are not explicitly stated, but INFERRED, liberal Justices have no problem with twisting constitutional logic to create a judgment that aligns with a political view. The best example is the right to privacy- a right not explicitly stated in the Constitution or any amendment. But using that inferred right, the Court had no problem striking down state abortion laws, religious establishment laws (or even the appearance of them) and a host of other state and local laws. This reveals that at the least, the liberals are hypocrites and at the worst, unprincipled.
In part 3, I will address the issue of gun control laws.