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