DOES THE SECOND AMENDMENT PROTECT THE RIGHT TO BEAR ARMS?
By Tom Head: A Mississippi native, longtime activist on civil rights issues, and an academic specialising in the history of ideas, He believes that a sustainable approach to civil liberties depends heavily on the entire community’s willingness to connect and empathize with people who are most directly affected by specific authoritarian policies. Ideologically, he trends left-libertarian and tends to agree with the American Civil Liberties Union (ACLU) more often than not. He has become increasingly skeptical of the Libertarian Party, primarily because of its tendency to support states rights to the exclusion of federal civil rights law, but still believes that it can become a force for good in American politics.
The Second Amendment reads as follows:
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.
Now that the United States is protected by a trained, volunteer military force rather than a civilian militia, is the Second Amendment still valid? Does the Second Amendment exclusively provide for arms to supply a civilian militia, or does it guarantee a separate universal right to bear arms?
Until DC v Heller (2008), the U.S. Supreme Court had never struck down a gun control law on Second Amendment grounds.
The two cases generally cited as most relevant to the Second Amendment are:
U.S. v. Cruikshank (1875), in which the U.S. Supreme Court struck down an 1870 federal law punishing individuals for violating the civil rights of others, using the Fourteenth Amendment to justify federal intervention in law enforcement (which was generally left to the states). The test case was the 1873 Colfax Massacre, in which over 100 African Americans were murdered by the White League, a militant white supremacist organization that was extremely active in Louisiana in the decades following the American Civil War. Chief Justice Morrison Waite delivered a ruling stating that the law was unconstitutional. While the case had no direct relevance to the Second Amendment, Waite did briefly list an individual right to bear arms among those rights that would have been protected by the federal law.
U.S. v. Miller (1939), in which two bank robbers transported a sawed-off shotgun across state lines in violation of the National Firearms Act of 1934. After the bank robbers challenged the law on Second Amendment grounds, Justice James C. McReynolds delivered a majority ruling stating that the Second Amendment was not relevant to their case, in part because a sawed-off shotgun is not a standard weapon for use in U.S. civilian militias.
The well-regulated militia referred to in the Second Amendment was, in fact, the 18th-century equivalent to the U.S. Armed Forces. Other than a small force of paid officers (primarily responsible for supervising civilian conscripts), the United States that existed at the time the Second Amendment was proposed had no professional, trained army. Instead it relied almost exclusively on civilian militias for selfdefense–in other words, the rounding up of all available men between the ages of 18 and 50. In the event of foreign invasion, there would be no trained military force to hold back the British or the French. The United States relied on the power of its own citizens to defend the country against attack, and had committed to such an isolationist foreign policy that the chances of ever deploying forces overseas seemed remote at best.
This began to change with the presidency of John Adams, who established a professional navy to protect U.S.-bound trade vessels from privateers. Today, there is no military draft at all. The U.S. Army is made up of a mix of full-time and part-time professional soldiers who are trained well, and compensated for their service. Furthermore, the U.S. Armed Forces have not fought a single battle on home soil since the end of the American Civil War in 1865. Clearly, a well-regulated civilian militia is no longer a military necessity. Does the second clause of the Second Amendment still apply even if the first clause, providing its rationale, is no longer meaningful?
According to a 2003 Gallup/NCC poll, most Americans believe that the Second Amendment protects individual firearm ownership. Points in their favor:
A clear majority of the Founding Fathers unquestionably believed in a universal right to bear arms.
The last time the Supreme Court ruled in favor of the civilian militia interpretation of the Second Amendment was 1939–almost 70 years ago, at a time when policies enforcing racial segregation, banning birth control, and mandating recital of the Lord’s Prayer in public schools were also considered constitutional.
The Constitution is a document, not a piece of software. Regardless of why the Second Amendment justifies its own existence, the fact remains that it still exists as part of the Constitution.
The Eighteenth Amendment established Prohibition; the Twenty-First Amendment overturned it. The American people have the means, through the legislative process, to overturn the Second Amendment if it is no longer considered worthwhile. If it’s obsolete, why hasn’t this happened?
The Constitution aside, bearing arms is a fundamental human right. It is the only means the American people have to reclaim control of their government, should it one day become irredeemably corrupt.
The Gallup/NCC poll also found that of the 68% of respondents who believed that the Second Amendment protects the right to bear arms, 82% still believe that the government can regulate firearm ownership to at least some extent. Only 12% believe that the Second Amendment prevents the government from restricting ownership of firearms.
The same Gallup/NCC poll cited above also found that 28% of respondents believe that the Second Amendment was created to protect civilian militias, and does not guarantee the right to bear arms. Points in their favor:
While the Founding Fathers may have supported the ownership of slow, expensive powder-loaded rifles, it’s doubtful that they would have been able to conceive of shotguns, assault rifles, handguns, and other contemporary weaponry.
The only U.S. Supreme Court ruling that actually focused on the Second Amendment, U.S. v. Miller (1939), found that there is no individual right to bear arms independent of national self-defense concerns. The Supreme Court has spoken only once, it has spoken in favor of the civilian militia interpretation, and it has not spoken since. If the Court has held a different view, it has certainly had ample opportunity to rule on the matter since then.
The Second Amendment makes no sense without the prospect of civilian militias, as it is clearly a propositional statement. If I were to say that I’m always hungry after dinner and so I eat dessert every night, and then one night I turned out not to be hungry after dinner, then it would be reasonable to assume that I might skip dessert that night.
If you really want to overthrow the government, bearing arms probably isn’t enough in 2006. You’d need aircraft to take the skies, hundreds of tanks to defeat ground forces, and a full navy. The only way to reform a powerful government in this day and age is through nonviolent means.
What the majority of Americans believe about the Second Amendment is unsurprising, because a majority of Americans have been misinformed about what the Second Amendment accomplishes and how federal courts have traditionally interpreted it.