Guns & the 2nd Amendment
It has been argued that the Second Amendment is an anachronism intended only to protect a state's right to maintain a militia, and therefore individuals cannot claim its protection as a personal right. The Second Amendment states:
"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."
But in speaking of "a well regulated Militia," the Amendment merely states a reason for recognizing the people's right to be armed, not necessarily a purpose for and limitation on that right. An armed citizenry was recognized as advantageous to a free State. If the Amendment were meant merely to guarantee a State the right to maintain a militia, the last half could just as easily have stated "the right of any State of this Union to permit their citizens to keep and bear arms shall not be infringed."
A People's Right
But this is not a State's right; it is a People's Right which they may claim in both their collective and individual capacities. In an age when the sense of community is strained and in many cases absent, the idea of citizens viewing themselves as a part of the people may seem out of place. But our founding documents often speak of actions and rights that belong to the people collectively. The Declaration of Independence, for example, speaks of the right that the people have to "alter or abolish" a government that becomes destructive of its proper ends, namely, securing their inalienable rights. The 1st Amendment to the Constitution declares that the people have the right "peaceably to assemble, and to petition the government for a redress of grievances." In each of these cases it is a people's right, but the exercise of that right requires action by individuals composing the people. So with the right to keep and bear arms. It is a right of the people, but it is a right that an individual must be permitted to exercise in order for it to be effective.
If the 2nd Amendment were read as merely granting states the right to maintain a militia, it would contradict Art. I, Section 10, Clause 3 of the U.S. Constitution, which forbids the states from keeping "troops, or ships of war in time of peace," "without the consent of the Congress." But the right guaranteed by the 2nd Amendment goes beyond merely what is necessary for a State to form a militia when needed. As a People's Right, necessary aspects of it exist regardless of whether Congress gives its consent for states to keep troops in time of peace or not. Congress could prevent a state from forming a militia, but this would not affect the right of the people to remain armed, and to be ready whenever the State called upon them to join a militia, or to protect their liberties in other ways contemplated by the Founders.
The 2nd Amendment provides an interesting insight into the Founding Fathers' attitude toward government. The new nation had recently freed itself from a government controlled by others, not themselves. They saw themselves as a people, and government as a separate, sometimes despotic and oppressive entity. If they could not have arms, they would be helpless before this other entity; they would be like slaves. They also feared that despotic forces might usurp whatever government they established, and they would be at the mercy of those forces. This, after all, was a new, untried form of government, and many on both sides of the Atlantic expected it to fail. Hence, the people retaining arms was a guarantee of their liberty.
Not an Absolute Personal Right
The right to "keep and bear arms" as guaranteed by the 2nd Amendment is related to and a part of the right of the people to defend themselves when necessary, both collectively and individually. It is not an absolute personal right because there are no absolute rights. As Jefferson wrote:
"All natural rights may be abridged or modified in their exercise by law." --Thomas Jefferson: Official Opinion, 1790.
The right to keep and bear arms is a right which the people must be free to exercise in order to accomplish a specific purpose. If the Amendment was intended to make the right to bear arms a personal right in any and all cases, it could easily have used "person" instead of "the people" just as it did in the 5th Amendment when referring to the rights of individuals, and have had the 2nd Amendment read, "no person shall be denied the right to keep and bear arms." This, indeed, would be similar to the wording that Jefferson used in his proposed draft of the Virginia Constitution:
"No freeman shall be debarred the use of arms (within his own lands or tenements)." --Thomas Jefferson: Draft Va. Constitution with (his note) added, 1776.
Of course, Jefferson added the note (which is usually omitted by gun proponents) "within his own lands or tenements" in his final draft. As a personal right, some such limitation would be reasonable, and to limit a personal right to one's own lands or tenements would serve two purposes: it would guarantee the right to own the arms for possible use in a militia, and it would allow free and reasonable use to the individual for all legitimate purposes. If the 2nd Amendment were a personal right, then anyone and everyone could "keep and bear arms" indiscriminately. But when Congress stated the right to bear arms as a people's right, it implied that the people could themselves put in place some control over the exercise of this right in order to fulfil their own purposes. Congress was fully able to distinguish between people and a person when identifying rights, and did so on many occasions. But they made this a People's Right, incorporating into it the purpose that would be associated with the people's exercise thereof and leaving the possibility of other limitations that would not defeat the stated purpose.
A Well-Regulated Militia
The militia was drawn from the people, and therefore it was imperative that the people have arms. If the militia relies on the arms that each individual possesses, then obviously the individuals must be able to possess those arms. If, on the other hand, arms for the militia were to be kept in a central armory, then the people must be permitted to maintain such an armory. The 2nd Amendment does not distinguish between these two possibilities, and we assume it could be applied either way.
But in any case, the Amendment is an anachronism as far as the issue of a militia is concerned. We no longer have a citizen militia, and our national defense does not depend on "a well regulated militia," but on regular armed forces and, in certain cases, the National Guard. In its original form, the militia was considered a first line of defense in case of invasion by foreign forces. Private militias were not contemplated by the Founding Fathers. This was to be a "people's militia," commanded, regulated and disciplined by local officials. The private militia groups of today, independent of the people's control, which is exercised through their local officials, were not what the Founding Fathers had in mind. They did speak often of the possibility of a militia to protect the people against despotic government. In fact, there is that often quoted statement by Jefferson to the effect,
"The most important reason for the people to retain the right to keep and bear arms is, if necessary, at last resort to protect themselves from tyranny in government."
I have not yet been able to authenticate that quote, otherwise I would add it to the Jefferson Quotes Webpage; nevertheless, I suspect it most likely is genuine. But there is serious doubt that the Founders ever contemplated the use of the militia against the government they had established, save under quite unusual circumstances. As long as the people had electoral control over their government, Jefferson saw no justification whatsoever for private powers formed to oppose lawful government, as in the following passage:
"Private associations... whose magnitude may rivalize and jeopardize the march of regular government [may become] necessary [in] the case where the regular authorities of the government [combine] against the rights of the people, and no means of correction [remains] to them but to organize a collateral power which, with their support, might rescue and secure their violated rights. But such is not the case with our government. We need hazard no collateral power which, by a change of its original views and assumption of others we know not how virtuous or how mischievous, would be ready organized and in force sufficient to shake the established foundations of society and endanger its peace and the principles on which it is based." --Thomas Jefferson to J. Morse, 1822.
The private militias we see today are not organized to rescue and secure the people's violated rights "with their support." There is no evidence of popular backing for these groups. They are self-constituted and, if anything, potentially destructive of lawful government and the rights of the people. They might not like "what they see going on in Washington," but they are not supported by a people who are convinced that "the regular authorities of the government" have combined "against the rights of the people." They are at most a disgruntled minority. The people of this country still have the power to change their elected officials through peaceful processes, and the dissatisfaction we observe with both major political parties is right now being responded to with the rise of a third party of significance. The system is in place, and it is working as planned. No necessity demands that government be overthrown with force and violence.
The first quote reputedly by Jefferson was probably from an earlier period when the Founders were fresh from their experiences with the despotic government of the British. Once the people had established a government in which they themselves were the sovereign, attitudes were different, as reflected in the above excerpt from 1822.
In a sense, the militia could be considered replaced by the National Guard, but the Guard of today has a different function from the former militia and does not draw its members from all able-bodied citizens. If the National Guard were compared to the militia, then it must be acknowledged that the whole function has changed to an extent that makes it very difficult to project on today's National Guard whatever the Founder's said about the militia. In no way, however, does that make the 2nd Amendment obsolete.
Do Militiamen Only Have This Right?
If the right to keep and bear arms is related to the existence of a militia, and if we no longer have citizen militias, does that mean that the rights protected by this Amendment are no longer valid? Not at all. The 2nd Amendment meant that a free people should retain the power of self-defense. The militia was merely the contemporary means by which that defense was effected. If militias go out of vogue, that does not mean that the need of the people to defend themselves ceases. Individuals also have other occasions to defend their lands and themselves, especially back then but even today. And as Jefferson wrote:
"The constitutions of most of our States assert that all power is inherent in the people; that... it is their right and duty to be at all times armed." --Thomas Jefferson to J. Cartwright, 1824.
A free state relies on its people to defend it when necessary and at all times to keep it free. A despotic State, on the other hand, relies on a standing army to maintain security, and such an army is often used to oppress its own people. The Founding Fathers feared the rise of a despotic State with a standing army the sole possessor of arms. In a free State, the first line of defense was a Militia drawn from the people, not a standing army. And to remain free, it was necessary that the people have a right to possess arms so that they could form a militia when necessary.
"The Greeks by their laws, and the Romans by the spirit of their people, took care to put into the hands of their rulers no such engine of oppression as a standing army. Their system was to make every man a soldier and oblige him to repair to the standard of his country whenever that was reared. This made them invincible; and the same remedy will make us so." --Thomas Jefferson to T. Cooper, 1814.
A free people, therefore, cannot completely disarm themselves and rely entirely on a standing army, save at the risk of losing their liberties as a result of some untoward event. A despotic State would fear to have an armed people that might rise in rebellion against it. But a free state encourages an armed people for its own protection, and in Jefferson's time, that meant a militia.
"For a people who are free and who mean to remain so, a well-organized and armed militia is their best security." --Thomas Jefferson: 8th Annual Message, 1808.
An armed militia was the means by which a free people assured their security. But the essential point is not the particular means, i.e., a militia, which is now an anachronism, but the fact that the people themselves should mind their own defense. The basic purpose of the 2nd Amendment, then, was that the people were not to be left defenseless. Government was not to disarm them, because if that happened, the possibility would then exist that the powers of government might be usurped and turned against the people, and they would have no means for correcting the situation.
The Right of Self-Defense
It must be remembered that arms were needed to protect the colonists, not only from the British or a despotic government, but also from Indians, possibly sea-borne marauders, foreign invaders and various predators on human society. Arms serve other uses also, such as hunting for food animals and personal protection while in the wilds. These uses were not addressed by the Amendment, because with the most important use secured, the other uses would be assured under that protective umbrella.
Since the right of the people to their own defense was necessary for their liberty, and since the people's right to liberty is a natural right, whatever was necessary to assure that liberty is an auxiliary right. Possessing arms may therefore be considered an auxiliary right necessary to secure our inalienable rights, for as Jefferson said:
"It is a principle that the right to a thing gives a right to the means without which it could not be used, that is to say, that the means follow their end." --Thomas Jefferson: Miss. River Instructions, 1791.
In other words, a right to liberty gives a right to the arms without which liberty could not be defended and secured. This is the primary purpose that the right to keep and bear arms serves, and this is the primary purpose of the 2nd Amendment. It is not because there is something intrinsic in arms that gives this right. Keeping and bearing arms is not an inalienable right, granted us by God, like the right of expatriation, or the use of our faculties, or the other natural rights identified by Jefferson:
"The evidence of [the] natural right [of expatriation], like that of our right to life, liberty, the use of our faculties, the pursuit of happiness, is not left to the feeble and sophistical investigations of reason, but is impressed on the sense of every man. We do not claim these under the charters of kings or legislators, but under the King of Kings." --Thomas Jefferson to J. Manners, 1817.
The sense of no man would tell him that every person born into this world has a right to a gun. A gun is merely a means to protect and defend those natural rights that sense tells us he does have.
The right of the people to defend themselves might otherwise be considered a "state's" right, assuming the state is an arm of, and acting on behalf of, the people. But what guarantee is there of this? The Founding Fathers had no such confidence in government. If the people do not remain armed, they would have no protection if the State later degenerates and becomes despotic.
Limitations on the Right to Bear Arms
Such personal rights as an individual has to keep and bear arms must coordinate with the principle use, i.e., the purposes of national defense and, under proper regulations, personal defense, hunting, and any other legitimate use of firearms. As a people's right, it is meant to serve a people's purpose. Therefore, there is no reasonable grounds for claiming an individual right to possess arms that serve no legitimate "people's purpose." Being denied the right to carry a concealed weapon, for example, does not necessarily infringe (i.e., defeat or frustrate) the legitimate purposes for bearing arms. Therefore, a law forbidding concealed weapons does not violate the 2nd Amendment, and the people through their legislature may restrict the carrying of concealed weapons if they so choose.
Only our inherent and inalienable rights exist independently of any government, and even those may be modified by law, although they may not be taken away entirely. To abridge or modify is not to take away altogether; it is to make reasonable regulation. While owning a gun is not an inherent and inalienable right, it is a right recognized by the Constitution. It may be modified and should be regulated by law, but it cannot be eliminated. To assume that any form of regulation whatsoever is a denial of this right flies in the face of the interpretation given to every other Constitutional right, none of which are absolute; all are subject to reasonable restriction to protect equally the rights of other persons.
Therefore, all ordinary citizens should be guaranteed the right to arms for all legitimate purposes. Gun ownership could properly be denied for any person convicted of a serious crime, for mentally incompetent persons, even for any person unfamiliar with the proper use of firearms. The people are not denied the right to keep and bear arms by intelligently regulating individual use. Persons who are members of a "militia" under the control of the people themselves through their elected officials, such as a National Guard, could be authorized to use weapons of war of all kinds appropriate for such a militia. Other citizens unattached to a "well regulated militia" have no legitimate reason to have or use hand grenades, machine guns, assault rifles, etc. For many people, the desire to own all kinds of firearms is understandable. Even Jefferson had this interest:
"One loves to possess arms, though they hope never to have occasion for them." --Thomas Jefferson to G. Washington, 1796.
But reasonable restriction on their use, while recognizing the purpose of the rights guaranteed by the 2nd Amendment, is in order for these modern times when arms have come to mean a whole new dimension of weapons from those the Founding Fathers contemplated at the time they gave us our Bill of Rights, and when the circumstances they contemplated for the use of weapons has completely changed.
Tom Kindig of LeftJustified Publiks made several valuable suggestions for this essay.
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