Recent tragedies involving the use of deadly firearms have brought the debate about gun control back to the minds of citizens everywhere. In order to critically analyze questions about gun control, I think that it’s important to first look at the Constitutional Amendment that is used to defend individual’s rights to possess firearms.
The Second Amendment of the US Constitution reads as such:
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 debate that arises is in the Founder’s intended scope for the Second Amendment. Did they intend for this Amendment to protect individual’s rights to possess firearms, or did the Founders have more collective and militaristic intentions?
In recent cases such as the District of Columbia v. Heller 554 U.S. 570 (2008), the Court found that the Second Amendment protected individual’s rights to have firearms. This ruling is likely due to the phrase “the right of the people to keep and bear Arms” that appears in the Amendment. The interpretation of the Second Amendment that was used in this case upholds a theory of individual rights in which restrictions cannot be made to prohibit the possession of firearms by individuals – any such prohibitory or regulatory measures ought to be deemed unconstitutional. However, the Court did find that felons and the criminally insane cannot possess firearms – not taking the individual rights theory to as extreme a level as I outlined. What this ruling doesn’t take into account is the first part of the Second Amendment and the idiosyncratic usages of the language of the time when this Amendment was written.
First, let’s examine the first part of the Second Amendment which reads: “a well regulated Militia”. This phrase seems to point to the intention that Framers only wanted to prevent Congress from creating any legislation what would do away with state’s rights to self-defense. Remember that in the time when the Second Amendment was written the militia played an integral part of a state’s self-defense – and thus the militia played an integral military role. Moreover, the language of the time suggests that any usage of “to bear arms” was meant in a militaristic sense. Therefore, through the optics of the Framers, it seems that we ought to observe a militaristic and collective view rather than an individual view regarding this Amendment. Thus this view is more of a collective theory of rights – that citizens do not have individual rights to possess firearms, rather that state and federal legislative bodies have regulatory and prohibitory authority over firearm usage by individuals without implicating any constitutional right.
In the case of District of Columbia v. Heller, the Court held that the right of an individual to have a firearm is completely unconnected to the militia or service to any body of self-defense for a state. I think that the ideology behind the Court’s finding in this case is inherently flawed. Even outside of the collective v. individual rights paradigm that I’ve constructed, there is still historical references to the regulation of firearms in the time after the establishment of the Second Amendment. According to scholar Nathan Kozuskanich:
The historical record is clear that Americans owned guns (which Individual Rights scholars have proven), but it is also equally clear that those guns were subject to robust regulation, most often by the militia organizations and through the militia service laws. The right of self defense was widely accepted as a natural right that had been incorporated into the common law, but none of the sources in these databases make the crucial link between personal safety and a constitutional right to bear arms. Also, many people of the time saw the militia as a key component in securing personal safety. Indeed, Americans of the colonial period and Early Republic had a more nuanced view of bearing arms than either the Individual Rights or Collective Rights Models can accommodate, a view intimately tied to notions of civic duty and communal responsibility. Rather than an individual or collective right, Americans viewed the right to bear arms as a civic right linked to militia service.
-Originalism, History, and the Second Amendment: What did Bearing Arms Really Mean to the Founders? – by Nathan Kozuskanich
No matter what context you look in, evidence seems to suggest that the Framers intended for our right to “bear arms” to be in a militaristic context of self-defense subject to regulation and prohibition on the individual level of firearm possession. However, the debate remains a heated topic and likely will until we can find a reasonable solution – I do not find the “let’s arm more people and place them in public schools” of the NRA a viable solution.
This debate will continue on for me even at home as I try to explain to my brother that our definition of “the right to bear arms” is completely different:
Billy Mays – My Baby Brother