The Second Amendment – The Right to Bear Arms - Part 2

In part one of my discussion of the second amendment, I covered one of the principle reasons the second amendment was added to the Constitution. The motivation was to ensure that the government could not arbitrarily infringe on the rights of the people, and further, to ignore their petitions for redress. In part two, I will discuss the right of individuals to keep and bear arms.
Once again, the second amendment reads: “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.”

In regards to the right of individuals to keep and bear arms, there are two primary interpretations of the second amendment. The first interpretation is generally referred to as the individual-rights view, and the second is called the collective-rights view. There are some interpretations that combine some parts of both the individual and the collective rights, however, I will be limiting this article to the two principle interpretations.

The individual-rights view basically provides that every person is authorized to own and carry weapons. Some minor variations state that people have the right to own any weapon(s), whereas others believe that this right can be limited by banning the most dangerous types of weapons.

This view is generally based upon the key phrase of “the right of the people…”. Throughout the US Constitution and the Bill of Rights, a certain uniformity exists in the usage of language.

As eloquently stated in a Department of Justice memorandum dated August 24, 2004,
“… not once does the Constitution confer a “right” on any governmental entity, state or federal. Nor does it confer any “right” restricted to persons in governmental service, such as members of an organized military unit. In addition to its various references to a “right of the people” discussed below, the Constitution in the Sixth Amendment secures “right[s]” to an accused person, and in the Seventh secures a person’s “right” to a jury trial in civil cases. By contrast, governments, whether state or federal, have in the Constitution only “powers” or “authority.” It would be a marked anomaly if “right” in the Second Amendment departed from such uniform usage throughout the Constitution.”

Additionally, the phrase “the right of the people” occurs in only two other places in the US Constitution, (first and fourth amendments), and there has never been any legal question or doubt that in these two cases that the “right” was being conferred to individuals, not to a state, nor to a specific subset of persons inside of government service.

George Tucker, one of the leading commentators on the US Constitution and the Bill of Rights in the years after they were written, further links the rights of individuals to keep and bear arms to both the basic and natural right of self defense, and as a basic tenet of insuring the continued liberty of people. He states in his essay, ’View of the Constitution of the United States’:

“ This may be considered as the true palladium of liberty . . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”

On the other hand, you have many who believe the right to “keep and bear arms” is limited only to members actively involved in government ‘militia’. This would include entities such as our standing military, national guard, police forces, et al…

As this does NOT reflect my view, and as I find no reasonable or justifiable support (though several district courts would dispute this) in any historical documents, I am going to let other people try and defend this view.

The last thing to address in this essay, is whether the government has the power to create laws which limit an individuals right to “bear arms”. In the Supreme Court case of US v. Miller, the Supreme Court, though not giving a specific ruling on the idea of individual rights over collective rights, did opine that states did indeed have the right to control those weapons which could not reasonably be used for legal purposes. In other words, if it was a weapon that you would expect only a criminal to have, then private citizens should not necessarily have a right to possess it.

Thus, the Supreme Court, while not deciding between the collective or individual rights to keep and bear arms, did decide that under certain circumstances, it was constitutional for states (and municipalities) to have gun control laws in place, though a complete ban on all firearms was held unconstitutional in Parker v. District of Columbia (9th Circuit, 2007).