The Right to Bear Arms

The Right to Bear Arms

Introduction

The Second Amendment to the United States Constitution 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." ("Second Amendment to the United States Constitution"). Today, the interpretation of the amendment has polarized the American people among two different views (Greenslade, 2004). Those opposed to private ownership of firearms agrue that there is no individual right to keep and bear arms because the Second Amendment refers to the people's collective right as a members of a well-regulated State militia. In contrast, the individual right view holds that individuals may bring claims or raise challenges based on a violation of their rights under the Second Amendment just as they do to vindicate individual rights secured by other provisions of the Bill of Rights. This view appears to be the most valid after placing the Second Amendment in appropriate historical and Constitutional context.

Historical Background

Prior to the United States Constitution, the right to arms was consistently a personal one based on several factors. "Beginning with the right of individual English subjects to have arms for their defense, it was supplemented in revolutionary America with the notion that a citizen militia, comprising the armed citizenry, was a particularly important means of securing free government." ("Whether the Second Amendment Secures An Individual Right", 2004) American leaders such as Thomas Jefferson proposed that "no free man shall ever be debarred the use of arms," and Samuel Adams called for an amendment banning any law "to prevent the people of the United States who are peaceable citizens from keeping their own arms." ("The Right to Keep and Bear Arms", 1982) Following the American Revolution, several states such as Pennsylvania, North Carolina, Vermont and Massachusetts included explicit right-to-bear-arms provisions in their declarations of rights. The bills of rights emerged from the ratifying conventions of several of these States. Every recommendation in these state conventions regarding the right to arms sought to protect an individual right - not a right to maintain well-regulated state militias, whether belonging to the States or to those serving in such entities and served as a basis for the Second Amendment.

Constitutional Interpretation

An analysis of the context and meaning of "the right of the people", "to keep and bear arms" and "a well regulated militia, being necessary to the security of a free State" supports private gun ownership rights.

"The Right of the People"

The "rights of the people" means the rights of individuals. The right to keep and bear arms is an individual right just as are all rights in the first ten amendments ("Second Amendment to the United States Constitution"). Further, "the people" used in the 1st, 4th, 9th and 10th amendments refers only to individual rights. Although in some contexts entities other than individuals are said to have "rights," the Constitution itself does not use the word "right" in this way ("Whether the Second Amendment Secures an Individual Right", 2004). For example, the Constitution never confers a "right" on any governmental entity, state or federal. Nor does it confer any "right" restricted to persons in governmental service, such as members of an organized military unit. Instead, state and federal governments have in the Constitution only "powers" or "authority".

When "right" is used together with "the people" the right must belong to individuals because people are not a State or the Militia ("Whether the Second Amendment Secures An Individual Right", 2004). Evidence shows that the only truly "collective" use of the "the people" at the time of the Founding was to refer to the people as they existed apart from government or any service to it. For example, The Declaration of Independence refers to "one People" dissolving their political bonds with another and forming their own nation, and "We the people" created the Constitution in ratifying conventions chosen "by the People" of each State. Thus, when "the right of the people" appears in the Constitution, it indicates a personal right of individuals, whether that be a right to assemble and petition, to be secure in one's person and property, or to keep and bear arms.

"To Keep and Bear Arms"

The phrase "keep arms" at the time of the founding of the United States Constitution usually indicated the private ownership and retention of arms by individuals as individuals, not the stockpiling of arms by a government or its soldiers ("Whether the Second Amendment Secures An Individual Right", 2004). When "to keep and bear arms" is used in conjunction with "right of the people" in the Second Amendment, it's