The Right of the People to Keep and Bear Arms: Who Does the Second Amendment Protect?
By Neal Shaffer
November 25, 2002
On this much we can all agree: America has a very powerful relationship with firearms. We owe our existence as a nation to the practical application of guns, and just as surely we owe the twinge of some of our greatest tragedies to their misuse. From there the debate branches out in a hundred directions or more, polarizing the American populace along the way. Guns have become a litmus test for political orientation—a window into an entire belief system: pro-gun equals conservative; anti-gun equals liberal. Unfortunately, as is often the case, the breakdown obscures the reality, and honest debate is rendered all but impossible. There is no shortage of opinion, and every question is rhetorical.
As such, gun ownership in America has become a strictly political matter. It is that, of course, but only in part. The right wing has staked that ground happily while the left has embraced the shorthand it provides. What has been lost is that the Second Amendment is also, and primarily, a civil rights issue. In failing to recognize this fact, the Democratic Party, and American liberalism, has lost touch with its roots and failed its constituents. There are two main issues inherent in the gun debate that are sorely in need of clarification: one, the issue needs to be addressed from the perspective of the good of individual citizens and not from a purely political standpoint; two, that where politics do enter the equation it is past time for the left wing of American political thought to be recognized as a natural home for pro-gun argumentation.
Make no mistake: the right to own a gun is guaranteed by the Constitution.
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 nothing ambiguous about this, the Second Amendment. Furthermore, it is far from coincidental that it is the second amendment. The rights to free speech, assembly, and religion are the cornerstones of a free society. The architects of our government correctly foresaw that these rights would face encroachment, and the constitutional right to gun ownership provides teeth for what would otherwise be a hollow proclamation. Anti-gun activists have seized on the "well regulated militia" clause and used it to claim that an individual right to bear arms is not built into the Constitution. Their substitute interpretation is that the Second Amendment guarantees a collective right, and that it exists only to protect entities such as police and the National Guard in their mission to protect us against a standing army or occupying force. The obvious flaw in this argument is that such entities are governmental, and as such do not exactly qualify as "the people." Having said that, it’s fairly easy to see why someone predisposed to be anti-gun would believe that the rights preserved by the Second Amendment are general and not individual. There is no shortage of available quotations from the founding fathers to refute this idea, but the best is perhaps this (from Thomas Jefferson):
Laws that forbid the carrying of arms... disarm only those who are neither inclined nor determined to commit crimes... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.
Jefferson’s anticipation of the current state of affairs is nothing short of amazing, and he illuminates a key point: the heart of the Second Amendment is that it guarantees the right of self-defense. One obtains a firearm to guard oneself against the very real potential that he or she will be attacked. "Security" need not be construed as broadly as it usually is. A people are free when their government does not encroach on their inborn liberties and they can move without fear through their chosen environment. Personal security, which is to say the ability to protect oneself from harm, goes hand in hand with societal security, which is to say the collective knowledge that a given governmental agency will not infringe on inborn rights.
As sad as it may be, America is a crime-ridden place. Culturally speaking, we have softened greatly since the days of Jefferson. When copious quantities of food, entertainment, and information are available with little effort it’s only natural that a people will lose touch with the harder edges of existence. The appeal of the liberal argument against guns (and, whether they admit it or not, against self-defense) is an emotional one. Guns represent violence, and many people (particularly tree-huggers in the suburbs who view the purchase of organic bread as a political act) are all too ready to live as if violence is an abstraction that can be defeated with ideology. To these people it is only natural to assume that the police will protect them.
This has become the core argument of American liberalism and the Democratic Party. Doing for oneself is infinitely more difficult than having others perform the task, and difficulty does not sit well with Million Mom Marchers. They are afraid from a distance, so rather than act to allay that fear they work to find new homes for the faith that such fear will never come to fruition. They see an event such as the Columbine shootings, or the recent sniper killings, and read it as another example of why guns need to be outlawed. Their argument is that if nobody has a gun then nobody can use it to kill. Lost completely in their argument is the obvious fact that the problem is violence, and a person inclined to violence will use whatever tool is at hand to carry it out. If the police and the government were capable of protecting us against such acts, why did it take them so long (and why did it take an "ordinary" citizen) to catch the sniper suspects?
(It’s important to note, as an aside, that the Republican Party is no more inclined to represent the real interests of the people than are the Democrats. The Republican pro-gun stance is the right one constitutionally, but they fail in that they would like people to fend for themselves completely, often to the point where it borders on social Darwinism. It’s simply unrealistic. Restoring the right to self-defense will not solve the crime problem, but it certainly won’t hurt. The Republican Party is not the problem where the gun argument is concerned. They are the problem in a number of other areas where crime is concerned, but we are concerned here only with the question of an individual right to effective self-defense.)
The Second Amendment, like much of the Bill of Rights, has been weakened by the courts. The most commonly cited defense of the liberal position is a 1939 decision in the case of US v. Miller. In it, the Supreme Court held that because of the militia language, the "obvious purpose" of the Second Amendment was to guarantee a collective and not an individual right.* Other courts have held similar positions over the years. However, case law is a matter of interpretation, and all one has to do is take a look at relevant Fourth Amendment cases to see that the courts are not always the best custodians of liberty. Furthermore, the 1930’s were a troubled time in American history. The Great Depression had given rise to political activism, and with that activism often came violence. Without attempting to speak for the Court, it’s logical to speculate that such violence entered into their thought.
Even if it didn’t, the truth does not change. Regardless of the opinions of individual politicians or judges the Second Amendment still exists, and exists for a reason. If we give up our right to self-defense we place ourselves at the mercy of criminals, corrupt officials, and chaos. Do we really want to place that kind of trust in a governmental system that spawned the cops who beat Rodney King and a President who wants to wage illegal war with Iraq? Perhaps, if we are fools.
To see what might happen were we to plunge completely into this way of thinking, we need only look at other nations. In both England and Australia (countries not dissimilar to our own) private gun ownership is illegal. We needn’t indulge in questions of cause and effect, since the causes of crime are varied and complex. Instead, what we can see is that there has been absolutely no decrease in crime as a result of the abolition of personal gun ownership. None. (Source: "Average Annual Percentage Change in Recorded Crime, 1987-1997," International Comparisons, Criminal Statistics, England and Wales, 1997, The Stationery Office; and Violent Deaths and Firearms in Australia: Data and Trends, Australian Institute of Criminology, 1996).
The examples are equally potent at home. States (such as Maryland) with strong gun control laws have likewise seen no decrease in crime. In fact, Baltimore, Maryland is one of the more crime-ridden cities in the country. Conversely, in states where right-to-carry laws have been liberalized, FBI statistics show that violent crime has gone down. In addition, states with "shall issue" (as opposed to "may issue") concealed carry laws have homicide rates 3% lower, robbery rates 26% lower, and total violent crime rates 13% lower than their gun-free counterparts (Source: Crime in the United States 1996, FBI Uniform Crime Reports). Gun control may very well be a nice idea, but it does not work.
What remains is this: how does the gun issue affect the average citizen? This is where the civil rights aspect of this issue should be most clear. Whatever chance one has to be victimized by a violent criminal will exist regardless of any governmental policy. If you have been chosen as a target then a target you are. Whether the criminal who has chosen to target you is carrying a gun or not is a matter of simple chance. What is clear is that if you have the right to own a gun to protect yourself, and you choose to exercise it, your chances of surviving the attack and, furthermore, of preventing the same attack from happening to someone else are infinitely (ridiculously) higher than they would be if you were forced into passivity by your desire to obey a gun control law. John Lott, Olin Law and Economics Fellow at the University of Chicago Law School, demonstrated conclusively that states could dramatically reduce violent crime rates by adopting concealed carry policies. Perhaps this is because though less than 1% of eligible citizens obtain concealed weapons, criminals don’t know who those 1% are.
This doesn’t mean that, if you are philosophically opposed to owning a gun, that you should own one. Nor does it mean that preventing convicted criminals or diagnosed misfits from owning a gun is a bad thing. What it means is that the choice should be left up to the individual, not to a government whose intentions may or may not be good.
Our model should come from the Black Panther party. When the civil rights movement was truly a struggle of individuals against tyranny, the Panthers made a regular habit of conducting armed patrols of their neighborhoods. The police and the government were not only failing to protect; they were in a mode of active attack. We are not, as a culture, currently facing any situation of that gravity. But who is to say we won’t? The Black Panthers were not right-wing good old boys. They were not NRA zealots. They were people who cared about themselves and their community and who chose to act on that concern. The left wing in America needs to remember its roots. Furthermore, we all need to rethink our trust, and start recognizing certain fundamental realities. It would certainly be nice if there were no violence, no threats, in America. Until that day comes, why are we so willing to give in, and to demonize those who choose not to?
* Editor’s Note: This is not an accurate description of the Supreme Court’s holding in United States v. Miller, 307 U.S. 174 (1939). In Miller, 307 U.S. at 178, the Court, faced with a poor factual record, held, "in the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." In Lewis v. United States, 445 U.S. 55, 65 n.8, the Supreme Court described Miller as holding that "the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia.’" However, the Supreme Court "did not attempt to define, or otherwise construe, the substantive right protected by the Second Amendment." Printz v. United States, 521 U.S. 898, 939 (1997) (Thomas, J., concurring).
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