The Right of the People to Keep and Bear Arms

The Right of the People to Keep and Bear Arms
Who does the Second Amendment protect?
By Neal Shaffer

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.

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?

The clause in the Constitution providing for Letters of Marque basically gives Congress the power to hire privateers to act on behalf of the country. This necessarily implies that the privateers have better weapons than mere rifles, MG's, etc. Back in the 1700's, such people had ships with cannon, which would suggest that in the present day they would have destroyers,cruisers, etc. with missiles, gatling guns, helicopters, etc. I would suppose that this would apply to tanks (the equivalent of armored cavalry) and planes (no equivalent but so what - there was no equivalent to computers and the Internet, and the 1st Amendment still applies to limit government censorship). Of course, were someone to abuse their right to keep and bear a tank, for example, then he or she could expect to have some other citizen (or group of us) with tanks or fighters to take it (and likely his life) away. This would be similar in nature to penalties for abusing the right of freedom of speech (slander is punishable, as is shouting "fire!" in a crowded theater when there is, in fact, no fire)

I draw the line at nukes or other WMDs, because these are area weapons (i.e. indiscriminate in their action). All other weapons can be utilized with a degree of precision (if the user is skilled, same as with a rifle), but WMDs are different. Of course, one can say that since the government derives its power from individual citizens, it cannot have more power than any one individual, but I can't buy into that. That would be anarchy, or at least a tyranny of the minority (no better than any other kind of tyranny). In any case, I'm not holding out for my suitcase nuke - right now, I'd be quite satisfied if the '34, '68, '86 and assorted Clinton-era gun control acts disappeared. In fact, we best not waste any effort on more than these unconstitutional acts, as such effort will be totally wasted efforts and will take away from what might be accomplished with a concerted effort over time.

I wonder why Oliver Wendenll Holmes didn't rule that side. He saw action in the Civil War.

Because the concept of "judicial notice" in this context requires that one party in the case actually raise the issue. It isn't a judge's job to argue a party's case - quite the opposite, it is forbidden (if it wasn't forbidden, who would trust a judge to be impartial?). All that would have been necessary was for Miller's attorney to ask that the justices give judicial notice to the fact that short-barreled shotguns were used by American military forces in WW1, and this would have been agreed to, probably even without testimony from soldiers who had actually used them. Of course, as we all know, Miller disappeared and had no one representing him at oral arguments before the USSC, so the point is moot. However, that ought not to be the case the next time a 2nd Amendment case comes before the Court.

Thank you for your informative post. I didn't mean to infer that MY personal interpretation of the Second Amendment posits that it pertains exclusively to military arms. I was conveying - or at least trying to - the general thrust of Miller. One thing about Miller himself; I can't cite a source on this, but vis a vis the proverbial "somewhere," I read the man failed to appear in court because he died before the case came up.

Your take on the Miller case is spot on.

Another interesting aspect of this case is that some years after the decision, one of the judges involved in the decision admitted that he had, in fact, used a short barreled shotgun in his service during WWI. However, as you (and the court) stated, there was no judicial notice and the govt lied it's ass off with the result being the foundation for almost all gun control laws to follow.

You are correct, AFAIK... However the prosecution apparently also misrepresented and said that sawed-off shotguns were NOT in use as a military weapon (or maybe it was that specific one, not sure)... however, when I was in Vietnam, sawed-off shotguns and even a sawed-off M-14 were in common use as close-quarters weapons and I can but imagine how many were used in WWI in the trenches. It may not have been ISSUED, but a sawed-off 12ga would be PERFECT for that circumstance, just as it was 50 years later!

The Supreme Court cannot hear evidence, they can only review what was presented in lower court. There was no presentation of evidence or testimony in lower courts that the short-barrelled shotgun was in fact used during WW-I as "trench guns," and the Supreme Court could not simply acknowlege that fact (take judicial notice of it, in other words) without presentation of evidence, so they remanded the case back to the lower court for further hearings which never took place.

Re: your take on Miller: I had a feeling that you were just giving a summary interpretation. Obviously, you read and understood the case. BTW, take a look at the 5th Circuit's Emerson decision of last year for a GREAT read on the 2nd Amendment and Miller.

Re: Miller himself, I believe that he was freed after the appellate court decision, but I'm not sure that he died in the intervening time until the USSC case. I am pretty sure that the other guy charged with him died. In any case, it hardly matters, as the gov't lied to the Court and no one was there to refute the lies.

Another interesting aspect of this case is that some years after the decision, one of the judges involved in the decision admitted that he had, in fact, used a short barreled shotgun in his service during WWI. However, as you (and the court) stated, there was no judicial notice and the govt lied it's ass off with the result being the foundation for almost all gun control laws to follow.

I believe you, but do you have a source for this? It would be interesting to add to my "gun control" files, and to show to anti-gun morons to prove that "their case" is a big lie. Thanks.

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