R
Ross John Lambourn
Guest
Myth: The Second Amendment guarantees the individual right to own a gun.
Fact: The Supreme Court has always interpreted this as a state's militia's
right, not an individual's.
Summary
Over the centuries, the Supreme Court has always ruled that the 2nd Amendment
protects the states' militia's rights to bear arms, and that this protection
does not extend to individuals. In fact, legal scholars consider the issue
"settled law." For this reason, the gun lobby does not fight for its perceived
constitutional right to keep and bear arms before the Supreme Court, but in
Congress. Interestingly, even interpreting an individual right in the 2nd
Amendment presents the gun lobby with some thorny problems, like the right to
keep and bear nuclear weapons.
Argument
The Second Amendment states:
"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."
Pro-gun advocates claim that this amendment guarantees their individual right
to own a gun, and that gun control laws are therefore a violation of their
constitutional rights. In fact, the term "violation of our Second Amendment
rights" has become a battle cry in gun lobbyist literature, repeated everywhere
in their editorials and essays.
However, this raises a fascinating observation. If gun control laws are so
obviously a violation of the Second Amendment, then why doesn't the National
Rifle Association challenge them on constitutional grounds before the Supreme
Court? The answer is that they know they face certain defeat, for reasons we
shall explore below. Consequently, the NRA has abandoned all hope in the
courts.
Instead, the NRA has chosen to lobby Congress to prevent gun control
legislation, and has become in fact one of the most powerful lobbies on Capital
Hill. This is a supreme and exquisite irony, given the conservative and
libertarian's love of constitutions and hatred of democracy. But, at any rate,
the NRA is fighting for its perceived constitutional rights on Capital Hill, by
bribing our legislators with millions of dollars in campaign contributions.
The reason is because the Supreme Court -- this nation's final arbiter on the
interpretation of the Constitution -- has always ruled that the Second
Amendment does not extend the right to keep and bear arms to individuals, but
to the well-regulated militias mentioned in the first part of the amendment.
Specifically, these are militias that are regulated by the federal and state
governments. Article I, Section 8 authorizes Congress:
"To provide for calling forth the militia to execute the laws of the
union, suppress insurrections and repel invasions; to provide for organizing,
arming and disciplining the militia, and for governing such part of them as may
be employed in the service of the United States, reserving to the states
respectively the appointment of officers, and the authority of training the
militia according to the discipline prescribed by Congress."
The Founders were passionately opposed to standing peacetime armies -- in fact,
Thomas Jefferson listed it as one of their grievances against the British Crown
in the Declaration of Independence. Intent on eliminating this evil, they
created a system whereby citizens kept their arms at home and could be called
by their state militias at a moment's notice. These militias eventually became
the states' National Guard, and the courts have always interpreted them that
way.
In 1886, the Supreme Court ruled in Presser vs. Illinois that the Second
Amendment only prevents the federal government from interfering with a state's
ability to maintain a militia, and does nothing to limit the states' ability to
regulate firearms. Which means that states can regulate, control and even ban
firearms if they so desire!
Even so, this left a question about how much the federal government can limit a
citizen's right to own a gun. In 1939, the Supreme Court addressed this issue
in United States vs. Miller. Here, the Court refused to strike down a law
prohibiting the interstate commerce of a sawed-off shotgun on the basis of the
Second Amendment. Rejecting the argument that the shotgun had "some reasonable
relationship to the preservation or efficiency of a well-regulated militia,"
the Court held that the Second Amendment "must be interpreted and applied" only
in the context of safeguarding the continuation and effectiveness of the state
militias.
In other words, the federal government is free to regulate and even ban guns so
long as it does not interfere with the state's ability to run a militia. Since
then, both the Supreme and lesser courts have consistently interpreted the
right to bear arms as a state's right, not an individual's right. At times they
have even expressed exasperation with some gun advocates' misinterpretation of
the Second Amendment.
In United States v. Warin, the Sixth Circuit Court of Appeals in 1976 upheld
the conviction of an illegal gun-owner who argued that his Second Amendment
rights had been violated. In pointed language, the court wrote: "It would
unduly extend this opinion to attempt to deal with every argument made by
defendant...all of which are based on the erroneous supposition that the Second
Amendment is concerned with the rights of individuals rather than those of the
states."
In 1972 Justice William O. Douglas wrote: "A powerful lobby dins into the ears
of our citizenry that these gun purchases are constitutional rights protected
by the Second Amendment....There is no reason why all pistols should not be
barred to everyone except the police."
Gun advocates have bitterly decried the "activist courts" that have supposedly
changed the plain meaning of the constitution. But over 100 years of courts
have interpreted a states'-rights meaning, and so has a broad body of
constitutional scholars. Gun advocates simply have a different "plain meaning"
of the constitution than everyone else, one that coincidentally legalizes their
desired goal of owning weapons.
The only apparent recourse for gun advocates now is to reject the system of
judicial review that has led to a perfect record of court defeats. But the
alternative is even worse: trusting Congress to pass laws that respect our
constitutional rights. On all other issues but gun ownership, the idea is
anathema to conservatives and libertarians.
But even accepting the gun lobby's interpretation of the Second Amendment does
not spare the gun owner from gun control. The amendment simply states that the
people have a right "to keep and bear" arms. It says absolutely nothing about
regulating them for safety, design or caliber. The gun lobby argues that the
lack of of such language means that individuals are free to own any arms they
please, and government cannot use constitutional silence to infer permission to
regulate them. But this isn't true; look at the First Amendment. It simply says
that "congress shall make no law... abridging the freedom of speech" -- yet the
government regulates countless forms of speech -- slander, malicious
falsehoods, fraud, insider trading, etc. -- and these regulations are upheld by
the Supreme Court. The same principle applies to the regulation of guns.
This point becomes especially important when considering the regulation of arms
by category. For example: do the people have a right to own nuclear weapons?
(Pro-gun advocates contemptuously call this the "nuclear straw-man argument,"
yet they have not even come close to providing a satisfactory answer to it.)
How about chemical and biological weapons? Tanks? Battleships? Bombers? In a
society where people get drunk, angry, jealous, self-destructive and mentally
ill, you certainly wouldn't want the unregulated sale of nuclear weapons on the
market. Prohibition of such arms seems like the best thing to do, but, strictly
speaking, that too would be a violation of the Second Amendment.
Some pro-gun advocates admit that a literalist interpretation allows the right
to keep and bear all arms, including nuclear weapons, and that this is surely
archaic. Certainly the Founders could not have foreseen or intended this
situation. However, pro-gun advocates claim the correct reaction of modern
America should be to amend the constitution to exclude ownership of nuclear
weapons; creatively interpreting the constitution is the wrong way.
This is a curious argument, for a couple of reasons. First, the entire
rationale of an individual right to keep and bear arms is to defend against a
tyrannical government. But to surrender an advantage as overwhelming as nuclear
weapons and smart weaponry to the government is irrational. Given the
fanaticism of the gun lobby to protect themselves from government tyranny, this
meek acquiescence towards weapons of terrible destruction is more than little
strange, and begs explanation. It suggests that, down deep, the gun lobby is
not really serious about its claim that government threatens them. (How could
they be, in a democracy with high-speed, mass communication?) What is more
likely is that they feel the need to empower themselves, and firearms are
sufficient to fulfill that need.
The argument is also strange because it concedes a point to gun control;
namely, that there are some weapons so deadly that they should not be allowed
in society. That is exactly what gun-control advocates have been arguing, and
you don't need nuclear weapons to achieve the feared results; the U.S. already
has the high murder statistics to prove it with handguns alone.
The argument is also strange because the gun lobby fervently hopes to avoid
public mobilization on a constitutional amendment limiting the right to keep
and bear arms. A huge majority of Americans favor stricter gun control laws;
and as long as they're excluding nuclear weapons they might as well throw in
assault weapons and Saturday Night Specials.
But ultimately, calling for a constitutional amendment banning the ownership of
nuclear weapons is moot. Individuals do not even have a guaranteed right to
keep and bear firearms, much less modern military weapons. To overcome the
Supreme Court on this issue, the gun lobby would have to promote fundamental
changes in our political structure that would surely be disimprovements.
Fact: The Supreme Court has always interpreted this as a state's militia's
right, not an individual's.
Summary
Over the centuries, the Supreme Court has always ruled that the 2nd Amendment
protects the states' militia's rights to bear arms, and that this protection
does not extend to individuals. In fact, legal scholars consider the issue
"settled law." For this reason, the gun lobby does not fight for its perceived
constitutional right to keep and bear arms before the Supreme Court, but in
Congress. Interestingly, even interpreting an individual right in the 2nd
Amendment presents the gun lobby with some thorny problems, like the right to
keep and bear nuclear weapons.
Argument
The Second Amendment states:
"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."
Pro-gun advocates claim that this amendment guarantees their individual right
to own a gun, and that gun control laws are therefore a violation of their
constitutional rights. In fact, the term "violation of our Second Amendment
rights" has become a battle cry in gun lobbyist literature, repeated everywhere
in their editorials and essays.
However, this raises a fascinating observation. If gun control laws are so
obviously a violation of the Second Amendment, then why doesn't the National
Rifle Association challenge them on constitutional grounds before the Supreme
Court? The answer is that they know they face certain defeat, for reasons we
shall explore below. Consequently, the NRA has abandoned all hope in the
courts.
Instead, the NRA has chosen to lobby Congress to prevent gun control
legislation, and has become in fact one of the most powerful lobbies on Capital
Hill. This is a supreme and exquisite irony, given the conservative and
libertarian's love of constitutions and hatred of democracy. But, at any rate,
the NRA is fighting for its perceived constitutional rights on Capital Hill, by
bribing our legislators with millions of dollars in campaign contributions.
The reason is because the Supreme Court -- this nation's final arbiter on the
interpretation of the Constitution -- has always ruled that the Second
Amendment does not extend the right to keep and bear arms to individuals, but
to the well-regulated militias mentioned in the first part of the amendment.
Specifically, these are militias that are regulated by the federal and state
governments. Article I, Section 8 authorizes Congress:
"To provide for calling forth the militia to execute the laws of the
union, suppress insurrections and repel invasions; to provide for organizing,
arming and disciplining the militia, and for governing such part of them as may
be employed in the service of the United States, reserving to the states
respectively the appointment of officers, and the authority of training the
militia according to the discipline prescribed by Congress."
The Founders were passionately opposed to standing peacetime armies -- in fact,
Thomas Jefferson listed it as one of their grievances against the British Crown
in the Declaration of Independence. Intent on eliminating this evil, they
created a system whereby citizens kept their arms at home and could be called
by their state militias at a moment's notice. These militias eventually became
the states' National Guard, and the courts have always interpreted them that
way.
In 1886, the Supreme Court ruled in Presser vs. Illinois that the Second
Amendment only prevents the federal government from interfering with a state's
ability to maintain a militia, and does nothing to limit the states' ability to
regulate firearms. Which means that states can regulate, control and even ban
firearms if they so desire!
Even so, this left a question about how much the federal government can limit a
citizen's right to own a gun. In 1939, the Supreme Court addressed this issue
in United States vs. Miller. Here, the Court refused to strike down a law
prohibiting the interstate commerce of a sawed-off shotgun on the basis of the
Second Amendment. Rejecting the argument that the shotgun had "some reasonable
relationship to the preservation or efficiency of a well-regulated militia,"
the Court held that the Second Amendment "must be interpreted and applied" only
in the context of safeguarding the continuation and effectiveness of the state
militias.
In other words, the federal government is free to regulate and even ban guns so
long as it does not interfere with the state's ability to run a militia. Since
then, both the Supreme and lesser courts have consistently interpreted the
right to bear arms as a state's right, not an individual's right. At times they
have even expressed exasperation with some gun advocates' misinterpretation of
the Second Amendment.
In United States v. Warin, the Sixth Circuit Court of Appeals in 1976 upheld
the conviction of an illegal gun-owner who argued that his Second Amendment
rights had been violated. In pointed language, the court wrote: "It would
unduly extend this opinion to attempt to deal with every argument made by
defendant...all of which are based on the erroneous supposition that the Second
Amendment is concerned with the rights of individuals rather than those of the
states."
In 1972 Justice William O. Douglas wrote: "A powerful lobby dins into the ears
of our citizenry that these gun purchases are constitutional rights protected
by the Second Amendment....There is no reason why all pistols should not be
barred to everyone except the police."
Gun advocates have bitterly decried the "activist courts" that have supposedly
changed the plain meaning of the constitution. But over 100 years of courts
have interpreted a states'-rights meaning, and so has a broad body of
constitutional scholars. Gun advocates simply have a different "plain meaning"
of the constitution than everyone else, one that coincidentally legalizes their
desired goal of owning weapons.
The only apparent recourse for gun advocates now is to reject the system of
judicial review that has led to a perfect record of court defeats. But the
alternative is even worse: trusting Congress to pass laws that respect our
constitutional rights. On all other issues but gun ownership, the idea is
anathema to conservatives and libertarians.
But even accepting the gun lobby's interpretation of the Second Amendment does
not spare the gun owner from gun control. The amendment simply states that the
people have a right "to keep and bear" arms. It says absolutely nothing about
regulating them for safety, design or caliber. The gun lobby argues that the
lack of of such language means that individuals are free to own any arms they
please, and government cannot use constitutional silence to infer permission to
regulate them. But this isn't true; look at the First Amendment. It simply says
that "congress shall make no law... abridging the freedom of speech" -- yet the
government regulates countless forms of speech -- slander, malicious
falsehoods, fraud, insider trading, etc. -- and these regulations are upheld by
the Supreme Court. The same principle applies to the regulation of guns.
This point becomes especially important when considering the regulation of arms
by category. For example: do the people have a right to own nuclear weapons?
(Pro-gun advocates contemptuously call this the "nuclear straw-man argument,"
yet they have not even come close to providing a satisfactory answer to it.)
How about chemical and biological weapons? Tanks? Battleships? Bombers? In a
society where people get drunk, angry, jealous, self-destructive and mentally
ill, you certainly wouldn't want the unregulated sale of nuclear weapons on the
market. Prohibition of such arms seems like the best thing to do, but, strictly
speaking, that too would be a violation of the Second Amendment.
Some pro-gun advocates admit that a literalist interpretation allows the right
to keep and bear all arms, including nuclear weapons, and that this is surely
archaic. Certainly the Founders could not have foreseen or intended this
situation. However, pro-gun advocates claim the correct reaction of modern
America should be to amend the constitution to exclude ownership of nuclear
weapons; creatively interpreting the constitution is the wrong way.
This is a curious argument, for a couple of reasons. First, the entire
rationale of an individual right to keep and bear arms is to defend against a
tyrannical government. But to surrender an advantage as overwhelming as nuclear
weapons and smart weaponry to the government is irrational. Given the
fanaticism of the gun lobby to protect themselves from government tyranny, this
meek acquiescence towards weapons of terrible destruction is more than little
strange, and begs explanation. It suggests that, down deep, the gun lobby is
not really serious about its claim that government threatens them. (How could
they be, in a democracy with high-speed, mass communication?) What is more
likely is that they feel the need to empower themselves, and firearms are
sufficient to fulfill that need.
The argument is also strange because it concedes a point to gun control;
namely, that there are some weapons so deadly that they should not be allowed
in society. That is exactly what gun-control advocates have been arguing, and
you don't need nuclear weapons to achieve the feared results; the U.S. already
has the high murder statistics to prove it with handguns alone.
The argument is also strange because the gun lobby fervently hopes to avoid
public mobilization on a constitutional amendment limiting the right to keep
and bear arms. A huge majority of Americans favor stricter gun control laws;
and as long as they're excluding nuclear weapons they might as well throw in
assault weapons and Saturday Night Specials.
But ultimately, calling for a constitutional amendment banning the ownership of
nuclear weapons is moot. Individuals do not even have a guaranteed right to
keep and bear firearms, much less modern military weapons. To overcome the
Supreme Court on this issue, the gun lobby would have to promote fundamental
changes in our political structure that would surely be disimprovements.
