Photo courtesy of iStockphoto.
The Second Amendment is a controversial issue in America today. Incidents of gun violence are common in cities across the country, and high profile mass shootings have become all too regular. From the infamies of Columbine and Virginia Tech, to the recent Cafe Racer tragedy in Seattle, it is not hard for liberals, communitarians, and progressives to find fault in America’s lax firearms laws. On the other hand, conservatives and libertarians are very concerned with the abrogation of our entitlement to firearms, to them a fundamental freedom protected by the Bill of Rights. The Supreme Court and the American people are divided over how to interpret the right to keep and bear arms, some finding this liberty to be incontrovertible and sacred to the individual, while others believe that firearms should be regulated much more stringently. Reading the plain words in the Second Amendment does not seem to have settled any debates, although it seems like such a mundane and obvious sentence:
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.
There is a deep-seated fear on the political right that President Obama and his Democrat allies have an intention of pushing through draconian restrictions on the possession of firearms. According to the FBI, the week leading up to Obama’s election in 2008 saw background checks for guns increase 49% from the same time the previous year. During the Great Recession the $41 billion dollar gun industry has seen solid growth while other industries have suffered, with some calling the President the best gun salesman of all time (Miniter). Earlier this year, at a convention for the National Rifle Association (NRA), musician and gun rights activist Ted Nugent got himself into a media stranglehold when he said, “If Barack Obama is elected, I’ll either be dead or in jail this time next year.” (Nimmo) Some liberals thought that Nugent was threatening to assassinate the president, but the language of violent resistance was metaphorical in this case. Republicans may be paranoid, but it doesn’t mean someone’s not thinking about disarming them.
A recent manifestation of right-wing worry over the loss of gun rights can be seen through their spotlighting of Operation Fast and Furious, the ATF’s botched gun walking sting, which saw 2,800 illegal firearms ushered into the hands of Mexican drug cartels. The death of US Border Patrol Agent Brian Terry and hundreds of Mexican citizens have been killed by these guns since the ATF lost track of them. It is not the purpose of this article to dive into the controversies of Operation Fast and Furious, but it is relevant to mention that some conservatives believe that President Obama and Attorney General Holder had secret motivations behind the gun walking operation, a desire to blame the Second Amendment for drug related gun violence in Mexico.
I am skeptical about Republican claims that Fast and Furious is really at root about the Second Amendment, since it would be much simpler for the Democrats to just appoint one more liberal Supreme Court Justice. Nevertheless, right-wing media has focused a lot of coverage on this controversy, while other mainstream media outlets have relegated it to only passing mentions. That is until the recent vote by the House Oversight Committee to hold Attorney General Holder in contempt of Congress for withholding documents, and President Obama’s related invocation of executive privilege. The disparate partisan focus on Operation Fast and Furious underscores how the parties diverge on Second Amendment worries.
Polling is split where gun rights are concerned. In 2010, with 40% of Americans were calling for stricter gun laws, 16% wanted less legal restrictions, 42% favored the status quo, and only 2% didn’t know. While those who want firearms liberated to a further extent are a small minority faction, there has been a large decrease in the number of Americans who want more gun restrictions, down from 59% in 1994. Advocates of greater gun control have been overtaken by Americans who prefer not to rock the boat, in 1994 those supporting the status quo only accounted for 28%, but they are now the dominant minority. Gun liberators were 10% of the population in 1994, so the sentiment is much heavier in the favor of gun rights than it used to be (De Pinto). This is a fairly astounding change since it is correlated with many high profile mass shootings during the same time, and illustrates that the country leans to the right on this issue. This should give you a hint about my own position on the Second Amendment, as a moderate independent. The Supreme Court is more evenly down the middle on gun control though, with the two major decisions coming down to divisive 5-4 votes.
The Supreme Court’s View of the Second Amendment
I think it speaks to the awesome legacy of American gun rights that the first Supreme Court case to hear a challenge to the individual nature of this right did not occur until 2008. In the case of District of Columbia v. Heller the Court ruled that federal enclaves, such as Washington D.C., must honor the individual citizens right to keep and bear arms for protection within the home. This decision overturned a D.C. law that required all firearms to be unloaded and disassembled, or to have trigger locks. Justice Scalia, writing for a narrow majority of five, found that the first clause of the Second Amendment which deals with militias is a statement of purpose not limitation, and that the second clause is the operative portion. Scalia found support for his interpretation in early state constitutions and the colloquial understandings of the time. It should be noted that this ruling did not find the right to bear arms to be unlimited and beyond all attempts at control, such as prohibiting criminals from possessing weapons or limiting the availability of large destructive weapons.
The case had its dissenters on the Court to be sure. The four liberal-leaning Justices disagreed with the conservative majority that the Second Amendment is an explicitly individual right. Rather the right to bear arms is a collective right related to service in a regulated militia. Justice Stevens wrote that the amendment clearly omits any reasoning related to individual self-defense against crime, or hunting for that matter. He also accused the majority of entering dangerous territory with the overturning of long standing precedents set by lower courts. Justice Breyer wrote that the framers never intended for the Second Amendment to prevent government from regulating the possession of firearms for the purposes of safeguarding the public. Based on these premises the Court’s liberals wanted to uphold what was effectively a gun ban in D.C..
The decision in District of Columbia v. Heller only applied narrowly to federal enclaves, and it was two years later in McDonald v. Chicago that the Supreme Court applied the same standard to state governments. In another close 5-4 ruling, Justice Scalia found that the Due Process Clause of the Fourteenth Amendment extended the precedent set by Heller to laws restricting gun rights in the various states. Justice Thomas wrote a concurring opinion in which he used the Privileges or Immunities Clause of the Fourteenth Amendment to extend the purview of the Second Amendment to states. A Chicago ban on handguns and other excessive restrictions on gun registration were overturned by the decision. Legal restrictions on the possession of firearms that control for mental capacity, criminal record, carrying in sensitive locations like government buildings, and the qualification process were upheld.
Justice Stevens and Breyer wrote dissents again, and the debate hinged on the issue of selective incorporation, whether or not Second Amendment precedents at the federal level applied at the state level. The issue of incorporation refers back to when the Bill of Rights only applied to federal law. In the late 19th Century, the Court began interpreting the Due Process Clause of the Fourteenth Amendment to protect individual liberties from state law as well. Selective incorporation is a doctrine that provides exceptions for states, such that the freedom under question can be regulated if it is not a fundamental liberty, an entitlement “implicit in the concept of ordered liberty” or “deeply rooted in our nation’s history and traditions”. This was defined by the 1968 precedent in Duncan v. Louisiana, in which the Supreme Court found that the Fourteenth Amendment incorporated the Sixth Amendment’s right to trial by jury into state law. The Court’s liberals argued that the right to bear arms for individual self-defense was not the what the framer’s intended by the Second Amendment, and being not fundamental, the state’s should have the right to determine gun restrictions based on their police power and their duty to protect the health, safety, welfare, and morals of the community.
The Fundamental Right to Self-Defense
It is the great historical controversy of humankind that violent conflict is wrought between individuals and between groups, and the right to protect oneself from bodily injury or murder is tied to our deeply rooted and self-evident right to life. Self-preservation is fundamental. The spirit of the Second Amendment surely infers the right to bear arms for individual self-defense. The problem is that the text does not spell this out explicitly. Many constitutional debates center around the problem of ambiguity in the textual definitions, introducing the need for interpretive ideologies, doctrine, framer’s intent, and past precedent. In the case of the Second Amendment it is vagueness in both the Well-Regulated Militia Clause and the Keep and Bear Arms Clause that cause most of the disputes.
Since the operative clause about bearing arms is prefaced by the statement, “A well regulated militia being necessary to the security of a free state”, there is a tendency on the part of gun control supporters to argue that gun rights are restricted to service in a well-regulated militia, presumably giving states and the federal government the power to restrict firearms and other weapons in all other cases. This is not a frivolous point. To some this logic seems quite sound. If the first clause of the Second Amendment were not meant to be operative, why include it at all, and why the absence of any reference to self-defense in the text if this is also a part of its meaning?
Justice’s often attempt to resolve the textual ambiguities by employing interpretive methods such as original intent, tradition, stare decisis, and other doctrines, but unfortunately these tools of judgment come with their own ambiguities and controversies. In cases where the Court is split down the middle, both the majority and the minority can easily find the solace and support in their own instances of tradition and precedent, as the two Second Amendment cases mentioned above demonstrate. Even reference to original intent of the framer’s can end muddling interpretation more than it elucidates. Alexander Hamilton seems to lend support to the well-regulated militia construal made by the Court’s liberals when he writes in Federalist No. 29:
It requires no skill in the science of war to discern that uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness. This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union “to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress.”
These sentiments imply a view of militia regulation which does not easily conform to a conservative view that the Second Amendment’s Militia Clause is not operative, especially since Hamilton’s call to national authority over militias is embodied in the US Constitution’s grant of powers to Congress, in Article 1 Section 8 Clauses 15 and 16:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress[.]
Congress has the responsibility of arming militias. Since the Second Amendment makes reference to well-regulated militias with a tone of rationalization, because there are no other justificatory references, and given the federal and state authority over militias in Article 1, it is not too unreasonable to interpret the right to keep and bear arms as limitable to government-subordinated militia members?
Of course there are other clues to framer’s intent that can be referenced which support the conservative view that the right to bear arms is a freedom reserved to the individual, irrespective of a federally subordinate militia. The most powerful argument for this is the Second Amendment itself. The context of the entire Bill of Rights was about the addition of amendments that would enumerate, and thus guarantee, certain liberties that could not be denied without seriously compelling reasons. The Militia Clause does not employ any language that necessarily implies any limitations to the statement, “the right of the people to keep and bear arms shall not be infringed.” It can be convincingly argued that the statement about militias is only meant to be educative, and makes no operative transformations to the Keep and Bear Arms Clause. Evidence of the use of educative statements of this kind can be found in the 1776 Virginia Declaration of Rights, a likely inspiration for Madison’s language in the Second Amendment:
SEC. 13. That a well-regulated militia, or composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
To Virginian’s in 1776, it is the people’s right to keep and bear arms because it is the people’s right to rise up in their own defense, with particular concern about repressive standing armies, and an implied right to rebellion under such authoritarian circumstances. Arms in the hands of the people act as a hedge against despotic takeovers. The right to revolution certainly made a lot of sense to the Founding Fathers, and as modern Americans we can understand their outlook vicariously. However, I can’t imagine a situation is which the Supreme Court would interpret the Second Amendment to mean that citizens had the right to stockpile weapons, just in case there becomes a need for the civilians to take on the US Army or Marine Corps. In this context the conservatives on the Court must find a reason other than the right to insurrection to claim that the right to keep and bear arms is fundamental to the individual, hence the inference of a right to self-defense instead. The legacy of America’s revolutionary spirit and her love for guns has muddled constitutional interpretation. The truly original American underpinning of the right to keep and bears arms is a threat to government authority, a sympathy one would hardly expect a government authority to share, even conservatives on a Supreme Court.
There is another interpretive uncertainty in the Second Amendment, a problem of definition. What is the definition of “arms”? For the American revolutionaries the weaponry of the time was muskets, but also cannons, yet it hardly seems acceptable to extrapolate from colonial definitions that modern Americans have a right to posses mortars, grenade launchers, or anti-aircraft battery. If the intention behind the Second Amendment is really about citizen militias having the capability to defend their lands against foreign invasion, organized insurrection, or even justified rebellion against a tyrannical government, then it would seem that the people have a right to more than just handguns and rifles.
Still I doubt that the Founding Fathers, the Supreme Court, and most American citizens would view my use of a missile-armed Predator drone for my own personal security about the city, or on hand just in case I need to rebel against a standing army. But it is entirely possible that National Guard units will be allowed to employ drones domestically, in a well-regulated way. Anyone considering constitutional interpretation should recognize that any distinction we make between guns and drones, in our defining of “arms”, is itself without textual support. Originalism is not much help either since a significant evolution in weapons technology has confounded framer’s intent, even with something commonplace today such as fully automatic rifles.
Many Americans might read me to this point, and still think that the language of the Second Amendment is obvious, and the right to bear arms means we all have a right to possess a firearm, pure and simple. I agree. Or if you are on the other side and think that firearms possession is obviously not an individual right, consider an additional constitutional precedent. In the 1992 case, Planned Parenthood v. Casey , the Supreme Court addressed the controversy of abortion by reaffirming that a woman has the right to terminate a pregnancy up to the point of viability, at which time the life of an unborn child becomes the compelling interest of the state. The Court was divided 5-4 in Casey, but it was a shock to many that Roe v. Wade was upheld here, because Republican appointed Justices O’Connor, Kennedy, and Souter voted with the Democrat’s appointees. The plurality opinion stated that precedent was a major factor in its finding that the provision for liberty in the Due Process Clause of the Fourteenth Amendment includes a woman’s right to choose:
The sum of the precedential enquiry to this point shows Roe’s underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe’s central holding a doctrinal remnant.
While the ruling above is still very controversial with most conservatives, it is much more likely to be accepted by liberals. I want to point out to gun control advocates, both on and off the Court, that even if you believe that the Second Amendment does not include an explicit right to keep and bear modern firearms for self-defense, the Fourteenth Amendment’s Due Process Clause does. Just as conservative Justices were willing to recognize the liberty precedent from Roe, I believe that liberal Justices should in turn recognize the liberty precedent in the right to bear arms for personal self-defense. Because like it or not, original intent or not, compelling state interests or not, we have grown up with the right to keep and bear arms. It is fundamental and individual.
Jared Roy Endicott
Works Cited
De Pinto, Jennifer. “2nd Amendment Supreme Court Case: Polls Show Public Split on Gun Rights ”. CBS. 28 Jun 201. Web. 24 Jun 2012.
Hamilton, Alexander. “Federalist No. 29”. Independent Jounral. 9 Jan 1788. Web. 24 Jun 2012.
Miniter, Frank. “Why U.S. Gun Sales Are Shooting For The Moon”. Forbes. 18 Jan 2012. Web. 19 Jun 2012.
Nimmo, Kurt. “CNN Journalist Calls for Throwing Ted Nugent in Prison”. InfoWars.com. 19 Apr 2012. Web. 24 Jun 2012.
US Constitution. 17 Sep 1787. Web. 24 Jun 2012.
Virginia Declaration of Rights. 1776. Web. 19 Jun 2012.
