The Sec­ond Amend­ment: A fun­da­men­tal prin­ci­ple of Amer­i­can lib­erty

The Washington Times Daily - - CELEBRATING FREEDOM - By Dr. Joyce Lee Mal­colm Joyce Lee Mal­colm, Ph.D., is Pa­trick Henry Pro­fes­sor of Con­sti­tu­tional Law and the Sec­ond Amend­ment at An­tonin Scalia Law School. She has writ­ten ex­ten­sively on the English and Amer­i­can right of the peo­ple to be armed.

The Founders would not have been sur­prised that the Sec­ond Amend­ment “right of the peo­ple to keep and bear arms” sur­vives. What would have sur­prised them was that it very nearly didn’t. The right of self-de­fense it pro­tects had been con­sid­ered the pri­mary law of na­ture since an­tiq­uity. Other gov­ern­ments may have for­bid­den their peo­ple to have weapons to pro­tect them­selves, but the English did not. English­men had a long-stand­ing duty to be armed to keep the peace and, be­gin­ning with the English Bill of Rights of 1689, that duty be­came a right.

Like other rights Amer­i­cans de­rived from Eng­land, the orig­i­nal English right to have arms had re­stric­tions — in this case re­li­gious and class lim­its, although these fell away by the early 19th cen­tury. In his clas­sic work pop­u­lar with the Founders, “Com­men­taries on the Laws of Eng­land,” Wil­liam Black­stone re­ferred to the right of hav­ing arms as a “nat­u­ral right of re­sis­tance and self preser­va­tion, when the sanc­tions of so­ci­ety and laws are found in­suf­fi­cient to re­strain the vi­o­lence of op­pres­sion.”

He in­sisted no gov­ern­ment could take the right to self-de­fense away. In con­trast to any lim­i­ta­tions on the English right, the Amer­i­can Sec­ond Amend­ment as­sumed “the right of the peo­ple to keep and bear arms” and de­creed it “not be in­fringed.”

For most of its his­tory, the Sec­ond Amend­ment was un­der­stood to con­fer an in­di­vid­ual right, not­with­stand­ing hun­dreds of var­i­ous reg­u­la­tions. But in the 1960s, wide­spread ri­ots and three po­lit­i­cal as­sas­si­na­tions led to de­mands for stricter gun con­trols. Cam­paigns be­gan for oner­ous re­stric­tions on pri­vate own­er­ship of firearms, in­clud­ing to­tal bans.

Along with these, came a de­bate over the core mean­ing of the Sec­ond Amend­ment. The gist was that Amer­i­cans had been wrong to be­lieve the Sec­ond Amend­ment guar­an­teed them an in­di­vid­ual right. The words of the amend­ment were parsed to dis­abuse them of that idea. Rather than the “well­reg­u­lated” mili­tia as a rea­son for gen­eral own­er­ship of weapons, it was ar­gued that the amend­ment merely en­sured that states have a mili­tia and that mem­ber­ship in the mili­tia, to­day’s Na­tional Guard, con­sti­tuted the only right to be armed.

To ad­vance this hy­poth­e­sis, the amend­ment was in­ter­preted as ex­clu­sively mil­i­tary. Un­like ref­er­ence to “the peo­ple” in the First and Fourth Amend­ments pro­tect­ing in­di­vid­ual rights, we were told that in the Sec­ond Amend­ment “the right of the peo­ple” merely in­tended a “col­lec­tive” right.

“Arms” meant only mil­i­tary weapons, “to bear” meant car­ry­ing weapons in a mil­i­tary force. “Keep” was ig­nored.

There was even the claim that if an in­di­vid­ual right were in­tended, it only pro­tected 18th cen­tury weapons.

Those op­posed to the in­di­vid­ual right in­ter­pre­ta­tion even claimed the in­di­vid­ual right was a brand new idea. Lau­rence Tribe, in the 1979 edi­tion of his pop­u­lar text­book, “Amer­i­can Con­sti­tu­tional Law,” rel­e­gated the Sec­ond Amend­ment to a foot­note. A gen­er­a­tion of law stu­dents were taught ac­cord­ingly. In 2008, the Supreme Court acted. In the case of District of Columbia v. Heller, the Court ex­am­ined the mean­ing of the Sec­ond Amend­ment for the first time. The jus­tices overturned Wash­ing­ton, D.C.’s ban on res­i­dents keep­ing hand­guns in their homes, af­firm­ing the in­di­vid­ual’s right to keep and bear those weapons in com­mon use for self-de­fense and other law­ful pur­poses.

Two years later, in McDon­ald v. City of Chicago, the Supreme Court in­cor­po­rated the Sec­ond Amend­ment’s in­di­vid­ual right through­out the coun­try, find­ing it “a fun­da­men­tal prin­ci­ple of Amer­i­can lib­erty.”

De­spite these de­ci­sions, de­bate con­tin­ues. Both land­mark opin­ions af­firm­ing the right of Amer­i­cans to keep and bear arms were passed by 5-4 ma­jori­ties, with the dis­sent­ing jus­tices ask­ing that they be overturned. Fur­ther, some judges are choos­ing to ig­nore the high court.

Moves to pro­tect and ex­pand the right to be armed are, how­ever, rapidly ad­vanc­ing in the states. Forty-four state con­sti­tu­tions in­clude a right to be armed, and only nine of the 50 states have re­stric­tive rules to pre­vent res­i­dents from car­ry­ing a con­cealed weapon, while 11 states per­mit any res­i­dent who law­fully owns a firearm to carry it con­cealed with­out fur­ther re­quire­ments.

Mil­lions of Amer­i­cans own and use firearms peace­fully. De­spite the re­cent uptick in gun vi­o­lence in a few cities, the past 20 years have seen a dra­matic drop in gun crime and gun homi­cides.

The Sec­ond Amend­ment af­fords Amer­i­cans a right and abil­ity to pro­tect them­selves and their loved ones. It places ul­ti­mate trust in the good sense of the Amer­i­can peo­ple, as the Founders in­tended.

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