The Right To Keep and Bear Arms: A Multi-Faceted Approach

The Attorney General (John Ashcroft) notified the National Rifle Association of a change of policy in regards to the right to keep and bear arms, namely, it is now the official position of the federal government that there is a constitutional right for individuals to own firearms. It is now official policy, as expressed in two briefs of the federal government to the US Supreme Court, which included this footnote.

It is rather surprising actually that this should be such a shock to certain individuals, since even if you hate guns, few would suggest that a law-abiding adult of sane mind does not have the right to have one. True, some might support waiting periods, strict registration and licensing laws, limit the number (and type) of guns one can buy over a span of time, and support disarming a broad group of people (e.g., ex-felons, including someone involved in a bar fight, or who bought or sold a bit of drugs). These issues might very well raise constitutional concerns, just as limits on the right to choose an abortion (as noted here, the two issues are related in various ways) often do, but the underlining right still has widespread support. Ashcroft's policy change therefore might very well be considered a good step to a more nuanced view and public understanding of the issue.

The "right to bear arms" controversy is victimized by a lot of misunderstandings. The public as a whole has a feeling that they have a right to own weapons (handguns, rifles, knives, and so on), but the primary lobbying group is the NRA. The "National Rifle Association" is a somewhat poor advocate in that (1) it is greatly associated with hunting and conservative causes (2) the very use of the word "rifle" has various implications that do not accurately address breadth of the weapons and issues involved, and (3) their talk of the "right to bear arms" gives a somewhat incomplete and confused view of the constitutional issues involved. The gun control side has its own problems, including not addressing the big government implications of their arguments, and the tendency to demonize guns and guns owners. I think the Libertarian Party is a better defender, though as shall be noted (and is discussed in the general issue links above), a broad range of groups can potentially be advocates.

Important rights tend to include a broad range of constitutional issues, as seen when discussing the constitutional right to privacy and the right to choose an abortion. The same applies here, though all too often the issue is limited to simplistic Second Amendment arguments. As with privacy, such a limited view tends to complicate reaching a true understanding of constitutional issues involved. Therefore, my interpretation of the issue necessarily requires an extended look at the many sides and themes that fit together to help us determine the true meaning of our constitutional right to "keep and bear arms" and show just how complex this right actually turns out to be.

An appropriate starting point is therefore not necessarily the Second Amendment, which is more difficult to understand removed from its proper context. We should instead look at the Constitution itself, in particular, the military powers given to the Congress (Article I). It is given the power to raise an army and navy, but only has the power to "call forth" militia. This militia, which is spoke of as a singular body (?the militia?), "may be employed in Service of the Union." for national service. In other words, the militia already existed; it was not a creation of the federal government. This "service" appears to be limited by the Constitution to aiding in executing national laws, dealing with domestic insurrections, and repelling invasions, though it has been read more broadly (Vietnam and UN missions [with the added problem of international leadership] are two cases where this was seen as suspect) in recent years to include overseas missions and military service. This arguably at least partly robs it of its local, civilian, and limited character, and was not national policy as soon ago as 1908 (the year when the Dick Act, in part stating militia only should serve on US soil, was amended).

Congress has the power to set up uniform rules of discipline and organization for the national militia, though states have the authority to train individual members (and choose officers). This suggests states retain a key role, since states logically would train its own citizens, thus militia would be divided by state. Congress also has the power to "arm" the militia, which clearly includes supplying the necessary weapons (including choose what they varieties they might be), but perhaps can be read to include "disarming" others as well. None of this need be read to deprive states to control their own militia when not in national service, but congressional power is phrased broadly. Furthermore, current law bars the national military to be involved in solely domestic affairs (e.g. law enforcement), following the spirit of the Constitution's intent that militia and local forces would be concerned with such matters.

PERPICH v. DEPARTMENT OF DEFENSE (1990) does a good job clarifying the current understanding of congressional control over the militia. The Militia Act (1956) organized the national militia as follows: (1) membership: all able-bodied males between 17 and 45 who are or intend to be citizens of the U.S. and of female citizens of the U.S. who are members of the National Guard (2) two parts: ?the organized militia? (National Guard and Naval Militia) and the rest. The National Guard takes two oaths of office: state and federal, so members are always liable to be called into national service, and when done so, are solely federal officers. For instance, they can be incorporated into the army (included those drafted in wars), and totally lose their ?militia? status. The act was revised recently (1994) to include some re-enlisted National Guard members up to the age of sixty-four.

The unorganized militia retains their true militia status, including the state power to train them and appoint officers, as well as their traditionally more limited (and domestic role). Finally, this part of the militia would also provide the resource the states need to protect their security; for instance, Congress could not federalized so much of the militia that states don?t have the personnel to provide necessary state functions like police, fire, and other related services. Therefore, ?the militia? is surely not only the National Guard, and in fact, the National Guard often loses core ?militia? qualities, including solely domestic functions and limited state control. Quite arguably, the Framers might be quite surprised and in some cases upset about just how much is lost. Finally, states have every right to set up their own ?militia,? but the federal government has the ultimate right to ?federalize? its members for national service, though arguably not so much so that the efficiency of state security is in jeopardy.

The use of civilians as a domestic military force has been ridiculed from the time of the Revolutionary War (e.g. by Alexander Hamilton), but it has value for the limited purposes spelled out in the Constitution. The militia is not meant to be an army, a permanent authoritarian and possibly power hungry body (at least given historical and international precedent and realities) that was seen as a threat to republican government and freedom itself. It is meant to uphold laws, deal with national disasters, and other domestic disorders. The militia also is there as a frontline defense before the professional military has a chance to come. It also can provide support for the military, though the current use of them in international service and as basic underlings to the military stretches their constitutional purpose to the limit. Finally, as shown by the many nonprofessional soldiers that fought in WWII and other wars, the militia is not a bad fighting force in many ways.

The need for a strong national government to have control over some military body to uphold its laws and protect it from attack is therefore addressed by various related clauses of the Constitution. This strengthening of a strong national government, one many at the time (and now) felt was dangerously so, was also controversial. For instance, many states made it clear that they did not want its citizens to be taken away from their home states for any extended period of time (six months would be pushing it). This was a time when weeks could be spent in travel time alone. [A recent attempt by two state governors (leaders of state militia, as the President is the leader of the national militia) to challenge sending state militia out of the country without their consent was rejected by the US Supreme Court] Another concern was that the military power would supersede the civil power, one of the issues that led to the Revolutionary War, especially if it would be a national military power. A strong army or a select militia (not seen as much different by many) would be one way this was possible.

A concern that the Constitution gave the national government too much power while not properly protecting the rights of the people and states endangered its ratification. A promise that a Bill of Rights would lessen this danger was a primary reason why several important states decided to ratify the Constitution, the vote being a close affair in states like New York and Virginia. This eventually lead James Madison to lead the movement to have the First Congress to pass the amendments that became what is now know as the Bill of Rights (one became the 27th Amendment in 1992, one never was ratified by the states). These amendments (even to some degree the Tenth, better known for its states power component) protected the rights of "the people" (or "a person") and limited the power of the federal government.

The words of the Second Amendment on their face appear to support an individual right to own a gun. "A well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms shall not be infringed." It is ironical that one of the few times the Constitution goes out of its way to give a reason for a right or power (see also, the power of Congress over copyrights and patents), it only adds to the controversy. The preface does not erase the right itself, a "right" given to people, not the government (which have "powers," not "rights," "state rights" rhetoric notwithstanding). Furthermore, many state constitutions used similar prefaces to protect other individual rights, such as speech, press, and jury trials. Also, if "the people" is taken as a united entity, then how about the use of the term in the First, Fourth and Ninth Amendments? Most agree these amendments protect individual right of assembly and petition, personal privacy and personal protection of rights not explicitly listed in the Constitution. The Constitution is ultimately concerned (and starts) with "We, the People," but the freedom of individual people is a central way their liberty and happiness is secured.

Others might say the limiting term is "free State," which might mean that the states themselves are given the right to "well regulate" a militia (this is known by some as the "collective," states rights argument). After all, the Bill of Rights as a whole is traditionally interpreted to be limits on the national government, even if some felt it also expresses certain essential rights (the Second Amendment included) no government should infringe. Nonetheless, the Bill of Rights as a whole basically deals with individual rights (even the Tenth, usually thought as protecting state power also deals with ?the people? themselves), so it would be somewhat extraordinary to treat the Second Amendment as the exception. It is true that the Bill of Rights originally was thought as a limit on the federal government (e.g. the First Amendment speaks of "Congress"), but the Fourteenth Amendment provided a much more nationalized view (see below).

A more nuanced argument is also put forth that seeks to put a states rights gloss on national power over the militia. As noted above, the militia is not a creation of the national government. Militia called up to national service has traditionally organized by state militia, as seen by the division of troops in the Civil War by state. Furthermore, states have the right to train their own militia and appoint officers. Meanwhile, the state has broad control over the portion of its own militia not in federal service. This system divides the military power and honors our traditional concern for local control. Nonetheless, the Constitution does not in so many words require the national militia to be divided by state, appears to allow Congress to call up the militia as a whole into service thus depriving the states of local control over an important resource, and arguably allows Congress to disarm the militia against the wishes of the states wherein they reside. Therefore, a states rights view of the Second Amendment would argue that it protected the states from a possible overly national reading of somewhat vague Article I congressional power over the militia. Individual ownership would only be necessary as far as required to uphold the state militia, which in certain cases might require militia members own a weapon, but not a general right for the population at large.

Local control of the militia was a major early argument against the draft, which was seen as an interference by the national government of state control over their own militia, as well as a way to make the militia into a thinly disguised army. An army, a permanent national body (states can not have such "troops" without congressional permission) clearly separate from militia, was seen as a more dangerous and corrupt body that lacked much in way of restraint as compared to a militia made up of locals in short term service. Nonetheless, local control and a draft is feasible (a draft, albeit a minor one, was in place during the Civil War), and logically the national government may have to compel states to provide forces necessary to uphold the purposes of a national militia. Therefore, opposing the draft using such arguments has its limits, though it might be more reasonable in peacetime.

It is true that ideally the militia is to be a truly voluntary force, but as with taxes and other necessities of republics like ours, at times state pressure is necessary. A person needed for state service cannot resist, for instance, just because they disagree with the law they are upholding. Nonetheless, religious belief should allow a believer to have some discretion, including alternative service. The fear that religious exemptions would be used too broadly (or dishonestly) to deprive the state of a necessary defensive resource lead the Framers to reject a suggested conscience clause to the Second Amendment. The issue was not seriously debated in much detail, and matters of conscience should be respected, especially if alternative service is accepted. Basic fear of government power should lead us to be dubious about forcing people to fight against their will, except in extreme situations.

State control over the militia also has other dimensions. Though the US Supreme Court held that the states retained control over their own militia (that part not called up to national service), congressional power is potentially great. A reminder that state control of militia is so important would be one of those "declaratory" amendments to reaffirm an important principle. Furthermore, if an armed militia was going to be a major defensive resource, the states would be best able to regulate it. For instance, some areas might require a greater armed presence (e.g. concealed weapons, assault weapons, or even widespread personal gun ownership at all) than others, depending on local conditions. Gun ownership would be important to further state militias, but states themselves would decide how broad such ownership would be. Also, as shown by a national law regulating gun free school zones struck down by the US Supreme Court (1995), congressional power can be read quite broadly in ways to interfere with local and state discretion.

Nonetheless, "a free state" is actually not just another way of saying "state," which is used quite often in the Constitution. It is quite true that the individual states were of particular concern, but how were they to remain "free?" The amendment clearly says how: by a well-regulated militia that is only truly possible when the people have the right to keep and bear arms. Local control was of some concern, militias were traditionally divided by state and locality, but ultimately the amendment concerns a broader issue. We must not let the explanatory clause (discussing a "well regulated militia" and implying states will regulate them, though this is not specified) override the core of the amendment itself (discussing a right of the people "to keep and bear arms"). And if we think such a right is no longer necessary, we cannot just ignore the dictates of the Constitution (after all, many don?t like the ability to ?take the Fifth? and not testify, or any number of constitutional demands that are not usually thought of as discretionary) ? we must amend it.

The Second Amendment tells us that a "free" state requires a "militia," which these days makes one think of specialized national guard type units that are largely controlled by the states, and at times called up for national service. This would greatly concern many at the time of the passage of the Second Amendment, since such "special militia" implied an antidemocratic selective military force not truly controlled by the people themselves. It seemed not much different from a state-controlled military or army, letting military/state power reign supreme over civil/popular power. "Militia" (used in the singular) at the time was really another word for the people themselves, in particular, all able-bodied men (and women, if true equality is upheld) of a certain age that had the ability and duty to protect their community. They met a few times a year to be counted and drilled, while being available when necessary. In less modern times, such a resource was quite important, especially in sparsely populated areas (and in the South, to deal with runaway slaves). Also, it was quite democratic, comparable to jury duty and voting.

The concept of a free people (and citizens) being one with the right to own weapons and having a duty to protect society has ancient origins back to the time of Aristotle in ancient Greece. Also, the duty of the people themselves to come out to uphold the law and peace had a long history in England in a practice known as the "hue and cry," for instance, when a criminal was on the loose. The whole idea of a "posse" in Westerns also comes under this idea. Finally, ironically the infamous pro-slavery Dred Scott v Sanford decision argued that if blacks were given rights, one of them would (shudder) be "to keep arms." More reasonably, one major difference between freedom and slavery was the right to own arms for self-defense. A militia will protect a free state, and when it is threatened by tyranny, an armed populace will be there to prevent freedom from being extinguished. This suggests one reason slaves could not own guns.

The federal (and some state) courts would not have that problem with much of what I discussed so far. The basic principle followed (for a summary, go here) is that the Second Amendment protects the right to keep and bear arms in the promotion of a well-regulated militia. Furthermore, since the Constitution gives Congress power to call up the militia to national service and to "arm" (possibly read as also having a power to disarm) them, the Second Amendment is in place to reinforce state control over their own militia. The militia has a democratic flavor to it, but the state still has power to regulate it, even deciding to disarm it in various ways in order to keep the peace. This includes relying on armed police forces while depriving the people a similar right to arm themselves. It was suggested that states cannot disarm their militia to a degree that it interfered with the resource available to the Congress, but this can easily be read to give Congress the choice to allow local regulations that are felt not to be a problem. Therefore, not only is the Second Amendment seen as basically only a limit on the states (unlike nearly all the other rights found in the Bill of Rights), but also the emphasis is on "militia," seen as ultimately an arm of the state.

We already saw the problem with this interpretation. The use of an explanatory phrase concerning the militia does not denigrate the basic purpose of the amendment, namely, to protect the right of the people themselves to keep and bear arms. This right (rights really) is in place because it is necessary to promote and protect the militia, which is necessary for a free state. Nonetheless, this is like saying that political debate is necessary for democracy to thrive, so we need to have a right to free speech. This is not generally interpreted to mean that the state can broadly limit free speech when such ends (in their opinion) are not upheld, or when an organized press or other speech related group is felt to be able to do the job without individual freedom of speech.

The current interpretation of the Second Amendment not only provides a limited view of the true breadth of the "militia" (the people themselves in control, not a group the state can selectively go to when they want to do so), but ignores the emphasis on individual rights that should prevent it. Local control of the militia is surely part of the mix, but ultimately the key is that the true power is an armed populace. Ironically, the sole US Supreme Court case in the modern era (1939) discussing the Second Amendment (involving an unlicensed transportation of an unregistered sawed-off shotgun, which is perhaps not militia weapon, but apparently the state does not have the total discretion to decide if it is) suggests so as well. It was given the opportunity by the federal government (the defense did not put on a case) to take a collective rights view, but chose to decide the case on more limited grounds, while if anything, supporting the individual rights view. Surely, this case alone does not support a law that bans all handguns or some similar broad deprivation of individual rights.

This concern for an armed populace is ironically also violated by groups that take it as their guiding light, namely militia groups. These groups tend to be far right, anti-government, and racist. They are separatists that do not truly honor the democratic nature of the amendment, which protects "the people," not select groups of them. It is true that a right to rebel when the government is truly unjust is basic to this nation's history; we declared our independence using such principles. Nonetheless, those who rebel against society but do so with misguided intentions can be dangerous, especially when they promote the idea that only certain individuals deserve equal respect. Also, unless these groups truly want to declare their independence from the US, the Second Amendment does not give a few people to declare themselves the militia and ignore the rights of everyone else or avoid all government regulation on their actions. Such groups have First Amendment rights of association, Second Amendment rights to keep and bear arms, but such rights also have obligations. Obligations many refuse to uphold.

The Second Amendment is not just concerned with the personal ownership of weapons. It is concerned with individuals "keeping" and "bearing" arms to protect the freedom and independence of their community and society as a whole. The wording itself implies this greater purpose, since "keep" (possess) and "bear" (carry and use) have a military (or "militia") connotation. It surely does not suggest the only (or even major) reason to own a gun is to hunt (though target shooting would generally promote militia skills, so would be protected). Furthermore, the personal right has a purpose to promote the militia, a responsibility to the community as a whole. Congressional power to call up the militia (Article I, section 8) suggests the purpose of the militia under the amendment: to uphold the laws, suppress insurrection, and protect against invasion. The role of the military to uphold treaty obligations, a form of law, suggests the international breadth of their role. Add serving as the ultimate check against tyranny (the lack of a "free" state) to this list, and you have the basic role (and responsibility) of the militia.

An argument is made that ?keep and bear? shows that the Second Amendment refers to a collective and military right, since individuals do not ?bear? weapons, soldiers do. First of all, a militia is clearly not an army; it is in place out of mistrust of armies. We also have seen that members of the National Guard are not quite what the Framers thought of when they said ?militia,? which is basically the armed citizenry with the right and obligation to protect the republic. At any rate, it is quite true that ?keep and bear? has a military connotation. The Second Amendment highlighted the militia because it was concerned with a particular use of weapons, namely protecting the state, which obviously includes personal security (individuals make up the state). And who had this military type role? The same group whom ultimately governed society (with help of the First Amendment), the people themselves. This should not be surprising, since the right to own firearms and other weapons in a time before organized police forces, when many if not most hunted for some of their food, large areas of the nation was frontier without much government forces at all, there was a constant fear of slave revolts, and so on was clearly seen as pretty obvious. See below, if you think we live in a completely different era.

The responsibility that arises from allowing the people to keep and bear arms is of special significance as well. The right to free speech, jury duty, and voting gives the individual person a role, a stake in governing the state. This role ultimately changes the individual in many ways, making her and him more independent, educated about public affairs, and assured about one's rights as a free citizen. Those who brought this nation into being and were concerned with such individual rights, including the right to keep and bear arms, felt free citizens were better people for having such rights. The alternative was a more "slave" mentality, a subservient view of one's role in society, like as a subject of a king. This is obviously not the proper mind-set of a free people who has the right and responsibility to own arms in order to ultimately protect freedom itself. It gives all a special responsibility, which if suitably honored, can make one a more responsible and independent person and citizen.

Also, the fact that ordinary people are given the right and responsibility to be members of the militia is as important as their right to be on juries. The point of view of an ordinary person is felt to provide a special insight in the determination of guilt or innocence, more so in some cases than even an arguably more qualified judge. This same democratic flavor is reflected in giving the people themselves a right to keep and bear arms. As a resident of a large urban area, I know firsthand how the police are seen by some people as at times almost an occupying army, surely not a body that truly understands and respects them. This is denounced as anti-police, but this suspicion of an armed institution of the state intrinsically being a threat to liberty is basic to the Second Amendment. The people themselves ("the militia") are seen as the true protectors of a free state, less liable to threaten the liberty of people who are basically just like themselves.

This understanding of a citizen militia also potentially provides a safer and more mature view of the use of force in our culture. Many fear that a broad right to keep and bear arms will cause a dangerous growth of violence via more gun ownership. Putting aside studies that show gun ownership reduces crime (by deterring and stopping criminals), the Second Amendment provides an alternate view. First Amendment freedoms are still seen in many countries as dangerous because it is felt that freedom of thought and association will lead to societal disorder. We believe otherwise, setting up a society in which freedom reigns, but still is not so broad as to be a general license to cause public disorder. We are able to have some sense of balance, seeing the good of freedom, but generally being able to handle and reign in the bad. A similar philosophy can be developed in regards to the militia: arms have their benefits, if used wisely. Furthermore, we ultimately have a right and an obligation as citizens (as members of the militia) to know how to use them wisely, an obligation society as a whole helps us fill just as it does by teaching us to read, develop a religious faith, and associate with others to prudentially practice our other basic freedoms.

This responsibility, as noted, is ultimately for a higher good. We act as individuals in our roles as citizens of the state, but we do so as part of society, which join together in various ways to promote the common good. The militia has been neatly compared to jury duty, where a person serves a limited amount of time occasionally to serve as the democratic component of the justice system. This democratic flavor was seen in the early practice of individual members of the militia appointing lower officers, such as colonels, a role now given to the states. The militia's basic nature is not just present when it is called up by the state for service, but remains when disorganized. The Second Amendment gives individuals who own arms the responsibility and duty to further the needs of the militia as a whole, which is why it gives them the right in the first place. Actually, since it is required for a free state, the people as a whole have the duty to serve the militia in some way.

The militia, that is the people themselves, have the ultimate power in a democratic republic. The people elect (vote) the leaders, indirectly authorize (with help of free speech and assembly) the constitutions and laws that guide them (upheld by the courts, where we have a role via jury duty), and ultimately have the responsibility to defend against threats to the state (militia). Now, it is quite true that there is a broad range of ways that we can do this, including preventing the need for violence in the first place. Nonetheless, at times, defense requires the use of weapons, and totally delegating this responsibility starts us on the road of not truly being in control of our fates. Also, just as we do not just (or should not) vote for our own amusement, the right to own (and "bear" when necessary) arms involves a responsibility (partly to keep it "well regulated") to the militia at large. Finally, if the state threatens to become a tyranny, the people under the principles of the Declaration of Independence have a right, no a duty, to resist.

Therefore, it is quite wrong to say that the "militia" or the Second Amendment itself is an outdated concept. If we do not need (or are willing to trust) the people to take part in domestic defense because we have police, do we need juries since we have a professional judiciary? Do the people need to be knowledgeable and take part in public debate, since we have professionals to do it for us, and so many lack the will or ability to do so intelligently? Sadly, the answers to all of these questions are open to debate. Nonetheless, I personally feel just as taking part in local public affairs is important, having a role in its security is as well. Neighborhood watches as well as other private citizen involvement in local defense is just one example of militia in action and is likely to be better in most cases than leaving it solely to an often distrusted police (or other armed state) force.

An individual rights view of the Second Amendment suggests "arms" is properly defined as those weapons usually (or traditionally) used by the people in their role as militia, i.e., those they would "bear." The musket or rifle (an assault rifle is just a more potent offshoot) was the central weapon of choice, but individuals used a range of personal weapons through time for militia duty, including knives and sidearms (handguns). It would not include machine guns (more of a weapon of a solidier than a regular person), bombs, tanks (kind of hard to "bear" a tank), or chemical weapons (though mace can be a personal weapon), except in extraordinary situations.

And what of the Attorney General's "particularly suited to criminal misuse" class of weapons? A possibly slippery term as shown by the use of bans of "Saturday Night Specials" (a popular weapon of choice of blacks), but a valid argument can be made that certain weapons are so useless overall for "militia" use that they might not be the "arms" mentioned by the amendment. Line drawing is difficult and potentially dangerous (for discussion on this and other issues, see here), but there is a difference between burdening handgun/rifle use as compared to assault rifles or plastic guns used to elude checkpoints.

The Second Amendment appalls some people, since they feel weapons are savage objects that should not be the defensive means of choice by in a civilized society. Such individuals at times do not mind police having such weapons, or (Rosie O'Donnell comes to mind) personal security guards. Furthermore, few do not have knives or other objects that can be used as weapons. Nonetheless, "arms" can be and should be in this day and age interpreted broadly. "Arms" can quite literally serve as weapons. Thus, personal defense such as karate would fall under a broad definition of the term. Also, efforts not to have to use arms at all, including home security systems and even peace movements fall under the spirit of the amendment as well. "The security of a free state" is a ever present need, no matter what weapon or arm we use to protect it.

We can and should read "arms" and "militia" broadly, especially since the ultimate purpose of the amendment is to protect the power of the people as the whole to have control over the security of a free state. An exception to those morally opposed to bearing arms was removed for fear of abuse, but the sentiment is also expressed in First Amendment right to freely exercise our religion. Furthermore, the belief that we have some duty to serve as members of the militia does not mean we all have to own guns and/or fight. This is comparable to suggesting that (for argument's sake) keeping women out of combat means they have no role in the military. Any number of roles in public service can be thought of that ultimately further the needs of the militia. In today's military, computers and other technology is as important than weapons, actually are used as a form of weapons. The people at large, the militia can also be creative in their use of "arms."

The NRA's concern for "the right to bear arms," therefore gives an incomplete and at times troubling view of the Second Amendment. It has a threatening connotation as compared to the right "to keep" arms that are rarely to be "bear[ed]." Often the only typical person who bears arms on a somewhat consistent basis is a hunter, who is not who the Second Amendment is concerned about. The phrase also does not properly imply the complete nature of the right as defined by the Second Amendment. We may not want to own guns, they might scare and/or disgust us, but we all in some fashion have a role to play in protecting the society. "Militia" also suggests working together for the good of society with some state supervision (comparable to jury duty, voting, assembly for protest in public places, etc.), not anti-government militia offshoots or crazy loners with dangerous firearms. Furthermore, one needs not to be a gun owner to be "keep and bear arms." Therefore, "militia" and "arms" have a much broader meaning than typically might be assumed.

The government clearly does have an important role in regulating the militia. Colonial practice was to insure the militia was present for drill and instruction a few times a year. A modern equivalent could readily be imagined. For instance, the state has a legitimate right to insure people know how to use their weapons, something that really cannot be taken for granted, as compared to rural farmers who used (simple) guns for hunting and home defense. The Second Amendment is concerned with protecting the public via individual gun ownership, which does not mean others are not to know you own weapon, or that you never have to show you know how to use them.

The government (local and national) has the right to call the militia to service when necessary, and to regulate it in various ways to insure it serves its purpose. For instance, laws are in place that certain people who have no role in the militia, including dangerous individuals, the incompetent, and minors, do not threaten the rest by having unwarranted rights to weapons. Furthermore, a state can ban ownership of weapons that are not appropriate for a personal right to keep and bear arms, such as cannon and bombs. The people themselves have an important role to insure the militia is "well regulated," but the state has a key role as well.

The state's role does not include limiting the right of the people to keep and bear arms. The First Amendment protects its rights in the broadest possible way ("Congress shall make no law . . . "), and the Second Amendment is as powerfully phrased ("shall not be infringed"). The idea that the state can deny a person the right to own a gun without violating the Second Amendment is therefore hard to believe. The limit of such broadly written basic rights, rights given to the people themselves, must be treated extremely carefully. For instance, if a background check to insure a person has every right to own a gun can be made quickly, it should not be spread over a long period of time. Decisions on the true meaning of the terms, such as the type of weapons and who has the right to them, must be made with the realization of the rights at stake. We do this with free speech and the rights of the accused, fair play [all of which have some limits] and what is at stake requires us to do the same with the Second Amendment.

The wording and spirit of the Second Amendment points to an individual right, not a right solely in the hands of the government. The right of states to control their own militia in various ways is an important one, helping to prevent a national army from being a dangerous tool of the central government over the people, but the amendment is primarily concerned with personal ownership and bearing of arms. As with free speech, individual rights protect societal ends. This is the logic of a free society: individual freedom is the best way to protect the security of the state as a whole. Free speech is not always pretty, but we are loath to limit it when it disturbs us; allowing the government to be the sole master of weapons is ultimately not a good idea either.

Current society has not changed so much that a centralized selective armed force (national guards and/or police forces) is enough to protect a "free" state. Does the police have the ability to be everywhere? Do we want the "Big Brother" society necessary to allow government even a semblance of a chance to be able to stop every threat to the peace? Does the ownership of firearms in certain areas not also reflect a general respect of the public at large that is sadly not present in some other areas (compare treatment in the rural South and West vs. the inner city)? Firearms (and weapons on the whole) also help equalize society, especially as an extra protection to women and those not able to afford security or homes in a safer area. Like it or not, deterrence and physical self-defense has its limits, and (individual freedom issues aside) the state as a whole is and should not be so powerful to do the job all by itself. Furthermore, the state does not even have a legal obligation to protect the public from harm (e.g. from abusive ex-husbands), even if an order of protection or complaint was filed. Are we to be left defenseless by delegating protection to a limited number of government (or if one can afford it, private) controlled individuals who do not have the ability or in many cases the obligation to protect us?

A word should be said also about the police. The traditional fear and distrust of standing armies, expressed most strikingly by the colonial response to their presence in the years right before the Revolutionary War, also delayed the development of modern police service. Police also were a form of authoritarian armed government officials that were seen as a threat to liberty. Sadly, they at times are in various cases today. The presence of an armed citizenry not only provides some assistance to the limited abilities of the police to uphold order, but also as a check to abuse. An armed populace is more likely to be treated with respect. Police forces are as or at times more useful tools of tyranny than the professional military itself.

If the state is unable to do the job, the militia is the final check to public disorder. A person is likely to own a gun (or other type of weapon) to protect his or her home or body itself, that is, to uphold the law in a way uniquely important to them. This individual protection adds to the safety of the state as a whole. In times of unrest (e.g., the LA riots and during natural disasters), personal ownership of arms can help to hold down domestic insurrection and threats to the peace. In certain areas and times (e.g., US territories and coastal areas in wartime, including as a home guard in many areas during WWII in which personal arms were often used), individuals might also have a role against invasions. Furthermore, arm ownership and use is ultimately to a large extent useless and dangerous if people do not how to properly use such a right. Some degree of regulation by society and the state is required to keep the militia "well," but ultimately it is up the people themselves. Finally, people can join together in official and quasi-official (e.g., neighborhood watches) groups to serve as part of a united militia to protect their community.

It is true times have changed the way the amendment's words and spirit is upheld. Nonetheless, there never really was some golden age in which the state as a whole just entrusted the people themselves with the protection of the state. Armies played a big role in protecting the frontier, as did police forces by the early to mid 1800s in the cities. As Alexander Hamilton argued, the professional military was always probably much more important than less reliable militia forces in wartime. There were always limits on gun ownership, especially in public and urban areas. The effort to prevent the need to use arms is often a more important job of the populace than the much fewer times when they are actually used and often work hand in hand. Therefore, even those morally opposed to weapons and warfare has a role in the militia. Nonetheless, individual ownership of arms is still one way the individual serves the militia, the people's role in the protection of a free state.

The Second Amendment is seen by some as giving states the right to control their militia, providing a local means of security to limit the danger of a national army. After all, the amendment talks of a "free state," "the people," and uses military terms such as "keep and bear" and "militia." "The people" does suggest a broad meaning is given to those called up to serve, though would not have included slaves (who were not considered part of the political community defined by that term). The state might decide that some degree of gun and other weapon ownership might promote these ends, but it might also severely limit such rights as well. After all, certain guns are dangerous, and do not serve much purpose in National Guard type militia units. Therefore, the right to own arms and have the chance to use them is not a national right of citizenship such as free speech. The amendment arguably seems not to concern individual rights at all, but if it does, it only means the national government has limited power to regulate state power in the area.

As we have seen, the Second Amendment is concerned with the promotion of the militia, which can be called up by the state in various circumstances. The term surely traditionally had a democratic connotation, especially in the revolutionary times when the Second Amendment was ratified, that includes the right of personal gun ownership. Nonetheless, we need not solely rely on this alone to show the basis of an individual right to keep and bear (or simply "own" without the military connotations) arms. The Declaration of Independence informs us that we have various basic rights, and among them is the right to life and liberty. These rights mean little if we cannot protect ourselves, which at times might require arms. This also in the past surely included the right to hunt and fish in order to obtain food, rights arguably so traditional and fundamental that they remain. Such rights are of the variety of unlisted liberties protected by the Ninth Amendment as well as the "due process" liberty protections no state can justly take away.

Another way to look at such protections is to consider the right of privacy. This is an area for which many gun control advocates are quite concerned, and a primary source is the Fourth Amendment. This amendment is concerned with our privacy in regard to our persons, homes, papers, and effects. Such privacy means little if it is not secured from attack. One judge (his two colleagues held the traditional view that the states had the power in this area) argued that Morton Grove, Illinois could not ban the ownership of handguns because they could be necessary to protect that bastion of privacy, the home. For instance, Thomas Jefferson spoke of the right to own arms at home. The same principle would uphold a broad right to arms ownership because the privacy is ultimately concerned with the liberty of the individual. Furthermore, the information collected by the government in gun licensing and registration schemes are just as open to error and privacy concerns as other computerized records. The same applies to upholding strict gun laws, which only would be successful if personal privacy is severely limited in various ways.

Gun control advocates are not the only ones who ignore the broad liberty concerns that arise from their arguments. The basic philosophy of the NRA is that there should be a broad right to "bear" arms, but those who break the law should be severely punished. The liberty that they are concerned with therefore tends to be of a limited nature because gun rights advocates often are also criminal law conservatives that support such things as mandatory sentences and minimums, long sentences, and the death penalty. The "free state" they feel requires a broad right of gun ownership is diminished when such drastic measures are in place. Let it be noted that strict gun laws would run into similar problems, when prosecutors, judges, and juries are loath to punish ordinary citizens. Gun control advocates should remember one reason their wishes have not been fulfilled is that a large segment of the people as a whole oppose them.

The Declaration of Independence states that "all men are created equal," but the Constitution itself did not directly protect equality until the Fourteenth Amendment was ratified in 1868. Nonetheless, it was surely a right that many felt was fundamental to all (at least to white males), and over time the basic of citizenship was given an egalitarian flavor. For instance, voting became more and more democratic, in court all were treated as equals in many ways, and each had an equal right to free speech, religion, and so on. The right to self-protection was no different, unlike English precedent of giving certain classes or religions special rights to keep and bear arms (and, in particular, to hunt). This is why blacks, and later women, felt the right to possess arms (and use them without unjust threat of punishment) was so important. Not only was it necessary for equal freedom and citizenship, it is important for basic protection from harm. Thus, many feel this is a civil rights and feminist issue.

The stereotype of a gun owner is either a criminal or a right wing (probably Southern, or perhaps a militia members from the West) nut. First of all, this is not true, as anyone not from these areas but who still owns or knows someone who owns a gun for any number of purposes can tell you. Second, even if we take this stereotype at face value (places like Texas do have a large gun culture), we should tread carefully. The people in these areas that own guns are not all or even primarily nuts, but ordinary people that are rightly annoyed when they are conceived in such a way. They wonder why legal gun ownership by people who know how to handle them and are not in the habit of doing anything illegal should be seen as a character flaw. Some, who might just be conservative, start to wonder why constitutional rights (some less obviously protected, like abortion) should be honored by them. Are they not Americans with rights too?

The right to possess and (when necessary) to use arms is a clear right of national citizenship. The "privileges and immunities" of national citizenship or (as is more often used today) the "liberties" no state can deprive any person without "due process" as spelled out by the Fourteenth Amendment has been read to cover most of the rights found in the Bill of Rights, along with many others. The exceptions include the right to grand juries for capital crimes (trials for crimes possibly punished with the death penalty can be okayed by judges alone), juries for civil cases for sums over twenty dollars, and the Second Amendment (the Third Amendment arguably has been protected in passing, but the issue is so rarely raised that no US Supreme Court case explicitly dealt with it). The individuals involved in passing the Fourteenth Amendment were not so cavalier about a right they knew was quite important to newly free slaves, who were often at risk from racist violence. Even some of the opponents of the amendment as a whole, mentioned that such a right of self-defense was clearly part of the rights of freemen.

It is quite true that early Supreme Court precedent denied that the Fourteenth Amendment protected an individual right to possess arms, ironically a more limited view than the implications of Dred Scott v Sanford (in passing mentioning this as a right of national citizenship). Nonetheless, some of the same decisions that held this (even when one of the members of Congress which passed the Fourteenth Amendment argued differently) also concerned free speech and assembly matters, which also were held to be rights not applied to the states. Therefore, it is a tad bit problematic for courts in the 1980s and 1990s to cite cases whose basic premise (the Fourteenth Amendment does not nationalize a broad range of fundamental rights) has long been overruled. Also, the Supreme Court has in passing ("dicta" or the part of a ruling not necessarily to be read as precedent for others) mentioned the right to keep and bear arms in lists of individual rights. A reasonable view of constitutional text, history, purposes, and court precedents involved in the "right to keep and bear arms" area would lead to a similar conclusion.

We can use such a reasonable and careful interpretation of the Constitution as a whole to show that the right to keep and bear arms remains a viable and important constitutional right. First off, let us end the simple minded and misguided interpretation of the Second Amendment. The amendment argues that the people's right and obligation to rule in republican society includes the means to defend it. Yes, it speaks of "militia," but the original understanding of this term was "the body of the people" (as was found in an original, unedited version of the amendment). Yes, "keep and bear" implies military use of arms, but surely the amendment intended people to have arms to defend themselves and their communities from violence and attack. The very point of the amendment is clearly that personal ownership of arms is an essential check against tyranny, even if arguably upholding a militia and domestic defense is possible without such a gun friendly view.

Even if we ignore the very words of the Second Amendment as well as their apparent intent (as obsolete, dangerous, or wrong), a broad right to own weapons was obviously seen as a fundamental right by the Framers. A right much broader than the more limited concerns of the Second Amendment, though aside from maybe hunting, the two are clearly connected. Furthermore, if the breadth of the Second Amendment scares you ("shall not be infringed"), a somewhat more limited right to own weapons can be defended on Fourteenth Amendment grounds. This source of national rights and equality for all individuals (citizens given some special preference) counsels us to recognize the individual security aspect of the Second Amendment, as well as allowing regulations that further its ends. Thus, having a personal means to defend oneself would be clearly accepted, but with reasonable limits to protect against personal and public harm.

A proper view of the purposes of the right involved requires a more reasonable view of firearm regulation. For instance, if it is seen as a broad right to put control of such matters in the people themselves, letting the state pick and choose who is armed and how they can be armed is wrong. Do we pick and choose the views people can hold or the books they write? Furthermore, not trusting the people to properly use firearms cannot be used to delay them from getting them. Also, each regulation must be treated carefully because a constitutional right is involved. The rights of convicted criminals at times are more valued than law-abiding gun owners. Picking and choosing what constitutional rights are to be honored is a good way to water down the respect of them across the board.

For instance, waiting periods is a big issue in the whole gun debate. It is legitimate to delay the sale of firearms, if this is done to determine the person buying the weapon is a legitimate member of the militia. Is the person a criminal? Too young? Is mentally unfit? The best way to do this is via computerized background checks, which can be done fairly instantaneously or within a few hours. As an aside, such checks should be done across the board, including in largely unregulated gun shows. There is no need to wait seven days or more, which is often seen as a "cooling down" period. In other words, the people do not have enough self-control to purchase a gun. Liberals are concerned when waiting periods are in place to have an abortion, and rightly so. The idea people will just rush out and buy a gun foolishly is akin to those who feel women will have an abortion without thought. Those who will use guns illegally will get them illegally, have one already, or be able to get around the law. Such laws are more likely to inhibit those law-abiding people who need (and constitutionally have a right to) one.

The rights of gun ownership apply to "the people" themselves, thus selectively limiting it raises various equal protection problems. Nonetheless, certain groups are legitimately denied this right, but its importance counsels that it is limited only as much as minimally necessary. For instance, various states limit the voting rights of prisoners and ex-felons, which turn out to have a disparate racial effect. This is troubling, since why should someone who "pays his or her debt to society" have a long term or lifetime ban on voting? The same applies to the right to own weapons, especially for various groups. For instance, if you have a five-year old felony conviction arising from buying drugs or being involved in a bar fight, should they be forever denied the right to a firearm? What about everyone dishonorable discharged from the military, including say those found to be homosexual?

Terms like "felon" and "mentally incompetent" can be read much too broadly, and the right is just too important. A recent Texan case in which an individual rights view of the Second Amendment was actually upheld by a lower federal court concerned a man in a divorce (state law supplied broad limitations on those charged with vague violations of "mental distress" or harassment against his ex-spouses) being charged with owning a gun.

Another case involved an ex-stripper unable to sue for being wrongly deprived of the right to purchase a gun because of mistake arising from a charge she was not convicted for more than ten years before. If an individual's right to keep and bear arms were respected, the court would not have been so cavalier about the whole thing. The same applies to giving the state the power to decide if someone is mentally or emotionally able to handle a handgun, whatever that might mean. This is a useful way to arbitrarily deprive people the right to own a firearm.

The federal government's individual rights' view (quoted above) excepts "firearms ... particularly suited to criminal misuse," which perhaps includes things like plastic guns used to evade metal detectors and such weapons like machine guns (as shown by the government asking the Supreme Court to not accept a case relating to them). A closer case is the controversial area of "assault weapons," which in various forms are owned by many individuals. Nonetheless, the fact is that a large amount of gun violence in this country arises from handguns, which clearly are protected by any halfway decent individual right to bear arms. If handguns are not very important to self defense or one of those personal arms used by militia, the right to keep and bear arms means relatively little. The facts that ?assault" weapons, which seems to be a tad redundant because all weapons are in some way meant for "assault," is ultimately a rather small issue (akin to "partial birth abortion" or "pornography") is only part of the problem.

Another problem is that the term is so vague; it turns out many "assault" weapons are much like firearms that would still be legal. They also have been shown to be useful in various ways, including, as a way to insure the people themselves are so armed, not just the state. A case for machine guns is harder to make, though it is fairly easy for those in the know about such things to alter legal guns. Furthermore, some point to past limitations on "Saturday Night Specials," which seemed to be largely in place because they were popular with blacks to show the dangers of a broad "criminal misuse" exception. Regulating along the edges might not be a serious breach to the right to keep and bear arms, but it turns out to be either trivial or questionable by those who fully respect the right involved. After all, should we also ban hard core pornography and ignore the rights of dangerous prisoners? The outer limits of constitutional rights shows how much we respect them in all cases.

Nonetheless, the essential core of the right to keep and bear arms can be respected, even if the right is not held to be absolute. After all, constitutional rights are never truly held to be absolute, for instance, the freedom of speech is limited in cases such as libel, fraud, and for any number of time, place, and manner regulations. If rock music in the middle of night can be regulated and the amount of money you can give to political candidates can be limited, even if free speech is "abridged," perhaps similar limits can be placed on the right to possess weapons. The middle road of sorts might be to allow those limits on the right to keep and bear arms that do not interfere with the purposes of the right, while promoting a logical interpretation of the issues involved.

For instance, an individual right to keep and bear arms to promote various interests may not require deadly weapons like assault rifles in urban areas. A handgun is much less liable to harm innocents when used, and promotes crime control and defense in general in such situations. Limits of this right in urban areas have long been common practice, including in colonial times and frontier areas. Also, concealed weapons might be stretching "keep" (perhaps meaning only at home) and "bear" (to use or carry in limited ways) too far, though this has long been a matter of debate. Though I am of the inclination to lean toward liberty when restriction is debatable, long time regulation in this area does suggest limitations on the right to conceal weapons might be legitimate, though as a practical matter, it might not be as good of an idea as some think. For instance, a victim of crime might want to keep a gun in her purse . . . is such a "concealed" weapon always too dangerous to allow?

A major concern for some gun rights advocates is registration and licensing. When this is used to selectively pick and choose those who deserve the right to own a gun, it is definitely illegitimate. Nonetheless, making sure a person is not one of the groups justly deprived of the right to own a gun is legitimate. Felons have a right to free speech, but might very well not have the right to get a license to own a gun. It is comparable to registering to vote. Others feel that when you allow the state to register guns and gun owners it gives the state a resource to later deprive people of their guns (which by the way seem to require compensation under the Fifth Amendment) or perhaps target them unjustly in some way (likely to be an illegitimate violation of equal protection). Nonetheless, one major reason for the militia is to serve as a defensive resource for the state, which requires the state know who owns what arms. For instance, various early militia laws required people to have arms, and gave the state power to demand proof thereof. Therefore, registration of arms might have problems, but also upholds legitimate purposes, especially if we want to keep track of weapons to deal with changing situations (e.g., a person owns a gun and commits a felony).

There are a myriad of local, state, and federal weapon regulations and laws. A healthy respect of personal rights and local discretion is constitutionally justified in this area. Current judicial interpretation of the Second Amendment would logically respect the states' broad right to regulate their own militia, including such things as what guns they could use and where they could use or own them (nationally determined gun free school zones potentially would limit homeowners who live near schools). Of course, state control over the militia is not the ultimate concern; the concern must be the militia itself, the people themselves. The Second Amendment and basic republican principles of freedom entrust the people with the ultimate security of the free state and ultimately themselves. This is the true value, the true necessity of a people with the means (including arms) of doing so.