RIGHT TO KEEP AND BEAR ARMS

The right to bear arms is a tradition with deep roots in American society. Thomas Jefferson proposed that "no free man shall ever be debarred the use of arms," and Samuel Adams called for an amendment banning any law "to prevent the people of the United States who are peaceable citizens from keeping their own arms." The Constitution of the State of Arizona, for example, recognizes the "right of an individual citizen to bear arms in defense of himself or the State."

Although this right is apparently protected by the Second Amendment to the Constitution, in practice it is subject to great deal of controversy. The two opposing interpretations of the Second Amendment involve whether the Amendment guarantees the right of individuals to keep and bear arms or whether it guarantees the states freedom from federal government infringement on this right. Individual rights proponents claim that the framers intended to preserve the individual right, above the right of the state. Proponents of States' rights claim that the Second Amendment was adopted with the primary purpose of preserving the state militia.

When the U.S. Constitution was adopted, each of the states had its own "militia" - a military force comprised of ordinary citizens serving as part-time soldiers. The militia was "well-regulated" in the sense that its members were subject to various requirements such as training, supplying their own firearms, and engaging in military exercises away from home. It was a form of compulsory military service intended to protect the fledgling nation from outside forces and from internal rebellions.

The "militia" was not, as the gun lobby will often claim, simply another word for the people at large. Indeed, membership in the 18th century militia was generally limited to able-bodied white males between the ages of 18 and 45 - hardly encompassing the entire population of the nation.

The U.S. Constitution established a permanent professional army, controlled by the federal government. With the memory of King George III's troops fresh in their minds, many of the "anti-Federalists" feared a standing army as an instrument of oppression. State militias were viewed as a counterbalance to the federal army and the Second Amendment was written to prevent the federal government from disarming the state militias.

In the 20th century, the Second Amendment has become an anachronism, largely because of drastic changes in the militia it was designed to protect. We no longer have the citizen militia like that of the 18th century.

Today's equivalent of a "well-regulated" militia - the National Guard - has more limited membership than its early counterpart and depends on government-supplied, not privately owned, firearms. Gun control laws have no effect on the arming of today's militia, since those laws invariably do not apply to arms used in the context of military service and law enforcement. Therefore, they raise no serious Second Amendment issues.

As a matter of law, the meaning of the Second Amendment has been settled since the U.S. Supreme Court ruling in U.S. v. Miller, 307 U.S. 174 (1939). In that case, the Court ruled that the "obvious purpose" of the Second Amendment was to "assure the continuation and render possible the effectiveness" of the state militia.

Since Miller, the Supreme Court has addressed the Second Amendment twice more, upholding New Jersey's strict gun control law in 1969 and upholding the federal law banning felons from possessing guns in 1980. Furthermore, twice - in 1965 and 1990 - the Supreme Court has held that the term "well-regulated militia" refers to the National Guard.

In the early 1980s, the Supreme Court addressed the Second Amendment issue again, after the town of Morton Grove, Illinois, passed an ordinance banning handguns (making certain reasonable exceptions for law enforcement, the military, and collectors). After the town was sued on Second Amendment grounds, the Illinois Supreme Court and the U.S. Seventh Circuit Court of Appeals ruled that not only was the ordinance valid, but there was no individual right to keep and bear arms under the Second Amendment (Quillici v. Morton Grove). In October 1983, the U.S. Supreme Court declined to hear an appeal of this ruling, allowing the lower court rulings to stand.

In 1991, former Supreme Court Chief Justice Warren Burger referred to the Second Amendment as "the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,' on the American public by special interest groups that I have ever seen in my lifetime...[the NRA] ha(s) misled the American people and they, I regret to say, they have had far too much influence on the Congress of the United States than as a citizen I would like to see - and I am a gun man." Burger also wrote, "The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon...[S]urely the Second Amendment does not remotely guarantee every person the constitutional right to have a ‘Saturday Night Special' or a machine gun without any regulation whatever. There is no support in the Constitution for the argument that federal and state governments are powerless to regulate the purchase of such firearms..."

Since the Miller decision, lower federal and state courts have addressed the meaning of the Second Amendment in more than thirty cases. In every case, up until March of 1999 (see below), the courts decided that the Second Amendment refers to the right to keep and bear arms only in connection with a state militia. Even more telling, in its legal challenges to federal firearms laws like the Brady Law and the assault weapons ban, the National Rifle Association makes no mention of the Second Amendment. Indeed, the National Rifle Association has not challenged a gun law on Second Amendment grounds in several years.

On March 30, 1999, U.S. District Judge for Northern Texas Sam R. Cummings restored a domestic abuser's firearms, citing the Second Amendment as guaranteeing an individual right to keep and bear arms. This decision flies in the face of years of precedence and jurisprudence and can only be viewed as a renegade decision. In his opinion, Judge Cummings was unable to follow usual judicial practice and cite legal precedents that support his decision because there are none. This ruling has been appealed and since that decision, two federal courts, including a higher Circuit court, have ruled that the Second Amendment does not guarantee an individual right to keep and bear arms (Gillespie v. City of Indianapolis).

Even if one believes that the Second Amendment guarantees an individual right to keep and bear arms, does that mean that all gun control laws are unconstitutional? Of course not. In fact, several states have clauses in their state constitutions which explicitly guarantee an individual right to keep and bear arms, yet not a single gun control law has been overturned in those states for violating that clause.

The rights guaranteed by the Constitution have never been absolute. The First Amendment protects the freedom of the press, yet libel laws prevent newspapers from printing malicious lies about a person. The First Amendment also protects free speech, yet one cannot yell "Fire" in a crowded theatre. It is doubtful that the Founding Fathers envisioned a time when over 30,000 people are dying from gun violence a year, when high-power military-style weapons like AK-47's with 30-round magazines are available on the streets, when an 14-year-old can take his father's guns and mow down his classmates, or when parents leave a loaded pistol around and a two-year-old can easily fire it. The vast majority of the American people support reasonable gun control laws and view them as necessary to reduce the level of gun violence in this country. The framers of the Constitution would surely agree.

In spite of extensive recent discussion and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there is no definitive resolution by the courts of just what right the Second Amendment protects. Special interest groups continues to generate tremendous support for individual right to keep and bear arms while claiming that no Article of the Bill of Rights is more important to the preservation of human liberties. They have succeeded in making the Second Amendment one of the most controversial legal issues in this country. As a result, the United States remains today as only nation whose citizens can still, to a broad extent, exercise the right to keep and bear arms. This right has cost the United States dearly in lives of persons killed by the disaffected, the unstable and the emotionally ill.

 

Learn more about right to keep and bear arms by visiting the following Web sites:

Legal Theory of the Right to Keep and Bear Arms

The Right to Keep and Bear Arms

The Second Amendment and the Historiography of the Bill of Rights

The Second Amendment and the Ideology of Self-Protection

Second Thoughts on the Second Amendment

The Second Amendment Foundation

Historic Supreme Court Decisions