Skip to main content

Legal Features

Second Amendment: Congress Has the Right to Reasonably Regulate Arms

On March 9, 2007, the D.C. Circuit Court of Appeals took one step closer to settling a decades long battle over whether the Second Amendment guarantees the people an individual right to bear arms or a so-called collective right to do so in the form of an organized militia. To the dismay of gun control advocates and the delight of gun rights proponents, the court ruled that the Second Amendment protects an individual's right to bear arms.

Although this fight may still have another round to go since the U.S. Supreme Court may decide to weigh in on the controversial ruling, the issue that remains for many is just as important: How far does the Second Amendment go in guaranteeing Americans the right to bear arms? For many, the answer is straightforward--any restriction on the right pierces the sacred constitutional barrier. Yet for many others who also consider themselves gun proponents, there is a middle ground of sorts whereby the right to bear arms can be respected while at the same time allowing the government to place reasonable controls upon what types of guns are to be owned and used. Those who argue for this balanced approach to the Second Amendment unabashedly argue that American citizens must be afforded the right to own guns for several reasons, including self-protection and preservation of all the other rights guaranteed in our Constitution. However, for them, the right to bear arms is not absolute. And in this way, Congress must be able to place reasonable controls on that right.

To find answers to this vexing issue, there must be a careful examination of the Founders' intentions in writing the Constitution, particularly its addendum--the Bill of Rights. In addition, there must be recognition of how far we've come since 1787--both as a people and in the destructiveness of our arms. But before exploring how far our right to bear arms extends, there is one thing that seems sure: history and reason stand strong on the side of gun proponents generally. As John Whitehead points out in his recent commentary, "Do American Citizens Have a Right to Own a Gun?", "With the despotism of a tyrannical king fresh in their minds, the Framers knew they had to provide a means for the people to defend themselves against a tyrannical government. They believed the right to keep and bear arms enabled a citizen to stand up to the government. If the government got out of hand, you could defend yourself--you could rebel."

However, it is much less likely that the Second Amendment should be, or was ever meant to be, an absolute right. In fact, as the Supreme Court has repeatedly noted when dealing with other constitutional issues, "even the fundamental rights of the Bill of Rights are not absolute." Kovacs v. Cooper, 336 U.S. 77, 85 (1949). For example, in Rosenfield v. New Jersey, 408 U.S. 901, 903 (1972), the Supreme Court determined that even the right to free speech "has never been held to be absolute at all times and under all circumstances."

Rather than stand as absolute rights, the liberties guaranteed in the Bill of Rights were intended to preserve that which the founders were most concerned about--self-government. The idea that the government was accountable to the people was in large part the motivation for recognizing a collection of fundamental rights. Indeed, that is precisely why the First Amendment guarantees us the right to protest government policies through our speech, be educated about the government through a free press, and the right to petition our government for a redress of grievances. The same holds true for most of the other rights found in the first ten amendments to the Constitution, including the Second Amendment's right to bear arms.

However, just as the Founders understood government control to be the sword of tyrants, they were also well aware that absolute rights were the instruments of anarchy. To have absolute rights in any respect would mean no control, and thus, no order. It is for this reason the Founders were intentional in how they crafted the language found in the Bill of Rights. The First Amendment isn't meant to provide us the right to speak obscenities. Nor does it give us the right to kill another person in the name of religious liberty. It didn't guarantee the right to slander another person in the name of a free press. And the Second Amendment doesn't guarantee Americans the right to own and bear a nuclear weapon for the sake of parity in arms with the United States government. While free speech, religious liberty, a free press and freedom to bear arms, among others, are fundamental rights that are to be highly respected, the government must be able to reasonably regulate them for the stability of our society.

Indeed, American society in 2007 is starkly different than it was in the early days of America. In the Founders' day there was relative parity of arms between citizens and government. Flint lock muskets were common among those in authority as well as among ordinary citizens. But today, the sophisticated weaponry and force that rest at the fingertips of the United States government is unimaginable. From small arms to the nuclear weapon, the U.S. government's ammunitions are unmatched by most foreign nations, let alone the American citizenry. It is impossible for citizens to have parity.

But another difference, and perhaps a more important one, is the difference between the American people then and now. The spirit of liberty was alive then. Early Americans as a community were committed--mentally, spiritually and physically--to fighting for a country free from a despotic government. And the right to bear arms was important to that cause, and continues to be today. However, today the American people face a different challenge: isolation and internal hatred. Today, America lives in fear fueled by random acts of violence. The idea of weapons to advance the fight for independence and self-government has been replaced with thoughts of random murder, school shootings, and terrorism--both foreign and domestic.

Times have changed in America--in more ways than one. We don't have the same types of weapons and many Americans certainly don't see arms the same way our Founders did. For these reasons, Congress should have the ability to reasonably regulate extraordinary arms. The founders knew that the liberties etched in the Bill of Rights, including the right to bear arms, would merely be ammunition in the lifetime struggle to defend liberty and self-government. But the true firearm for their dream of freedom was in what Thomas Jefferson called "eternal vigilance" of the people. The more "we the people" are alert and educated about our Constitution and our government's corruption, the more we will live out the call to defend American freedom. And when Congress knows that the masses are paying attention, that is worth more to the pursuit of freedom and independence than any assault rifle alone can provide. It is then that our Constitution will work to check unreasonable government actions addressing the regulation of guns and more.

The Second Amendment clearly provides individual Americans with a fundamental right to bear arms. We can only hope that more American courts recognize the importance of this right in the advancement of our first liberties. As George Mason declared, "To disarm the people is the best and most effectual way to enslave them." But in addition to that, we have to rise to the challenge our forefathers called us to, which is to carry the torch of liberty on to the next generation. Instead of calling for the right to own a grenade launcher, we should be calling for America to put the remote control down and take a stand for liberty!

David Caddell is a staff attorney with The Rutherford Institute. 

Donate