THE SECOND AMENDMENT
As the Vice President completes his report recommending to the President new federal legislation that will affect gun ownership, he likely will spend little, if any, time evaluating the constitutional limits on the power of the government to impose the prior restraints he thinks appropriate. We should be mindful of the Second Amendment’s intended meaning and should respect its Supreme law limits on the exercise of government power. The text of the Second Amendment reads:
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.
As explained below, the Second Amendment arose as a protection for the natural right of defense, both individual self-defense and collective defense, against acts in violation of individual right, acts of oppression, and insurrection and other attempts to subvert governments protective of liberty. Under Lockean rights theory, accepted as foundational by the founding generation, one may never be forced to part with the basic right of self-defense, particularly because, as the Declaration of Independence makes clear, insufferable governments that would deprive people of their rights to life, liberty, and property may give rise to a right of revolution. As the Declaration states: “whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it . . .”
In his 1803 edition of Blackstone’s Commentaries, St. George Tucker distinguished the American constitutional model from British disarmament of the populace, explaining the American law to embrace the natural right of self-defense and defining that natural right as “the true palladium of liberty.” He explains: “ . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is . . . prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed . . .”
The concept of “a well regulated Militia” presupposed, as then existed, state governments that would provide, protect access to, and condone training in the use of arms. In short, a well regulated militia is one that is possessed of military discipline and capable of acting, in the collective, against insurrection or assaults on governments protective of liberty. People were understood to possess a property right to own their own weapons and to bear them as reasonably required in self-defense or in defense of free government, but any who would bear arms to deprive another of an equal right to life, liberty, and property would be subject to criminal prosecution for the offense. The weapons of the day for self-defense and defense of the state included not only the musket but also the cannon, and citizen militias in the states possessed both. Thus the weaponry protected by the Second Amendment’s language embraces not only weapons for individual self-defense but also for collective self-defense of the citizenry against acts of oppression and in defense of free governments.
In the Pennsylvania Constitution of 1776, we find greater explanation for the right of private citizens to bear arms. It was meant not only to ensure that people could defend themselves and a free state (meaning a government that protected individual liberty) but also as a check on military power, ensuring civilian control of the military. The Pennsylvania Constitution of 1776, Declaration of Rights, Article 13 reads: “That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.”
In the Annals of the First Congress of the United States, we find the debates concerning the bill of rights generally and the Second Amendment in particular. The first version of the Second Amendment read as follows: “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.” Elbridge Gerry and others objected to inclusion of the religious scruples proviso. Gerry objected because he viewed it as one that presupposed a power in the government to adjudge who had appropriate religious scruples and to compel those not so adjudged to bear arms.
Gerry opined that a militia (by which he referred to a privately armed citizenry) was a counterweight to oppressive government. “Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins,” said Gerry. He explained that the American Revolution witnessed those attempts by the Crown as it endeavored to disarm the colonists.
Writing in 1833 in his Commentaries on the Constitution, Joseph Story provides another summary of the ideological underpinnings of the Second Amendment. He wrote: “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”
Is the Second Amendment, then, an absolute bar to any restrictions whatsoever on the owning and bearing of weapons? May a person own a thermonuclear weapon for self-defense or against a threat to the state? Does a convict or a person adjudicated insane have a right to own and bear arms? By reference to founding principles and practices, we may see that private citizens were allowed the right to possess weapons of the day which were equal to the weapons commonly used to deprive people of their lives, liberties, and properties and commonly used in defense of free governments against acts of insurrection, but never has the right been deemed an absolute which would trump the criminal laws. The constitutionality of the laws largely turns on whether the restriction imposed is a prior restraint or is the product of an adjudication where the rights of the accused have been taken away following a trial on the merits. In the former context, prior restraints invariably “infringe” on the right to own and bear arms; in the latter context, criminal punishments that include bans on gun ownership are meted out consistent with due process which, after all, permits adjudication to take away all rights to life, liberty, and property commensurate with the offense.
Today across the United States gun violence against individuals commonly involves use of automatic assault weapons. Insurrections, although somewhat rare in the United States, are commonly repulsed by police or, in some circumstances, the National Guard. The citizenry still keenly possesses a right in defense of liberty and free governments and, so, needs means to ensure both against the threats that presently exist in society.
It therefore appears plain that any attempt to ban assault weapons should be regarded as a violation of the Second Amendment, because one attacked by another with an assault weapon is largely incapable of effective self-defense unless he or she also possesses an assault weapon. Because assault weapons are ubiquitous in crimes across the nation, there is no sound argument that self-defense against such a threat could be satisfied with, say, a hand gun.
The constitutional right does not embrace an unlimited right to own any kind of weapon or weapon system, however. Weapon systems beyond individual and collective defense that, instead, are necessarily weapons of mass destruction are not protected by the Second Amendment. Consequently, an individual does not possess a right to a thermonuclear weapon or a howitzer or napalm or explosive or incendiary devices. They exceed what is reasonably necessary to ensure individual and collective defense. Moreover, although prior restraints and burdens on gun ownership “infringe” on the right to keep and bear arms, the government may exercise a constitutional power to prohibit those adjudicated of a criminal offense, adjudicated insane, institutionalized for insanity, or adjudicated a threat to themselves or others from owning a weapon.
In the end, because assault weapons are ubiquitous among criminals across the country and are already a part of an enormous black market, fed not only within the country but also across the border, imposition of more prior restraints on lawful gun ownership will simply infringe on the Second Amendment rights of the law abiding and will only enhance the position of those who presently use such weapons for the commission of crimes. By disarming more of the law abiding, prior restraints on gun ownership achieve precisely that kind of disarmament which violates the basic natural right of self-defense, leaving more Americans vulnerable to crime.
Even if we ignore the Constitution, as Vice President Biden may well do, the attempt to compare the United States with Great Britain is fraught with obvious pitfalls. Since the Seventeenth Century, England has variously disarmed its citizenry which, while contributing to less freedom for the Brits than for the Americans, has nevertheless created a society in which gun violence is less common than here. Still acts of terror from abroad harm Great Britain presently and its people have nothing at their disposal to subvert an act of terror beyond their bare hands. Hundreds of years of disarmament make Britain a nation more inhospitable to gun crime than the United States.
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An island nation capable of restricting weapon imports, and having no written Constitution to limit state power (the Parliament is Britain’s supreme law), Great Britain has experienced less gun violence than the United States. The United States has never experienced disarmament of its populace and, so, use of weapons are necessarily more commonplace. From even a utilitarian perspective, any attempt now to ban weapons will not produce a reduction in gun violence because weapons are ubiquitous in the United States and an already enormous black market exists in assault weapons in particular which would only grow if gun prohibition were adopted. Consequently, the best approach for the United States, consistent with our great Second Amendment rights, lies in law enforcement, ensuring that those adjudicated of crimes and found to be mentally ill are deprived of guns, and better training of the citizenry in the meaning of their Second Amendment rights and the appropriate use of weapons in self-defense.