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Does the right to bear arms apply to the individual?

Written By | Oct 7, 2017

WASHINGTON, October 7, 2017 — Gun violence is proliferating. In Las Vegas, at least 58 people were killed and over 500 wounded. Last year, 49 people were killed in an Orlando nightclub. In 2007, 33 were killed at Virginia Tech. In 2012, 28 students and teachers were killed at Sandy Hook Elementary School in Connecticut, including 20 children aged 6 and 7.

One was the grandson of a close friend.

According to 2015 data from the U.S. Center for Disease Control and Prevention, there are 12,000 gun homicides a year in the U.S., and for every person killed with guns, two were injured.

No other country in the Western world faces a problem of this kind, in which civilians claim they have a right to own military assault weapons. They claim this right with the support of the National Rifle Association (NRA) and gun manufacturers, arguing that it is guaranteed to them by the Second Amendment.

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The Second Amendment as they interpret it, however, has no relationship to the Second Amendment I learned about in college and law school.

Conservatives say that they believe in “originalism,” interpreting the Constitution by seeking to understand exactly what its authors had in mind. If they are honest about it, they would find the NRA’s advocacy of unlimited ownership of any kind of weapon, civilian or military, to be the opposite of what the framers meant and the courts previously upheld.

Historians point out that in creating the Second Amendment, the Founding Fathers sought to prevent the existence of a standing army during times of peace. They felt that, when given too much power, armies would overthrow democracy and put in place military rule.

As James Madison told the Constitutional Convention in 1787:

“A standing military force will not long be safe companions to Liberty. The means of defense against foreign danger have been always the instruments of tyranny at home. Among the Romans, it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up, under the pretext of defending, have enslaved the people.”

The Second Amendment was written with this situation in mind: “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.”

When the Bill of Rights was written, we had no professional army. What we did have were 13 separate state militias. These militias were seen as the best check against the rise of a standing army, and the Second Amendment was an effort to make sure they were always protected.

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Prior to 2001, every court decision concerning the Second Amendment asserted that the “states’ rights” or “collective right” model was inherent in the written words of the amendment and that it did not apply to individuals. It recognized the right of each state to arm its militia. Under this view, citizens as individuals have no right to keep or bear arms, but the states have a collective right to have the National Guard.

In United States v. Cruikshank (1876), the Supreme Court held that “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence” and limited the scope of the Second Amendment’s protections to the federal government. In the United States v. Miller (1939), the Supreme Court ruled that the Second Amendment “did not protect weapons types not having a reasonable relationship to the preservation or efficiency of a well-regulated militia.”

In the 1990s, Chief Justice Warren Burger, a conservative appointed by Richard Nixon, declared after his retirement that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have seen in my lifetime.”

In 2008, in the case of District of Columbia v. Heller, by a 5-4 vote, the Supreme Court held that the Second Amendment protects an individual right to possess and carry firearms. Ironically, Justice Antonin Scalia, the court’s long-time advocate of “originalism,” turned his back on the consensus about the intent of the amendment’s authors.

Scalia rejected the idea that Second Amendment rights could not be regulated. He wrote:

“Like most rights, the Second Amendment right is not unlimited. it is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. The court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons or the mentally ill or laws forbidding the carrying of firearms in sensitive places such as schools of government buildings … or laws imposing conditions and qualifications on the commercial sale of firearms.”

Hewing closely to the framers’ intent, Justice John Paul Stevens wrote in his dissent:

“The amendment’s text does justify a different limitation: the ‘right to keep and bear arms’ protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase ‘bear arms’ to encompass civilian possession and use, they could have done so by the addition of phrases such as ‘for the defense of the individual.”

If the original intent of the authors of the Second Amendment had not been altered by a militant campaign funded by the gun industry and the NRA, Las Vegas, Orlando, Sandy Hook, Virginia Tech and the other tragedies we have endured might never have happened.

The Second Amendment has become for some people something of a cult. It is sad to see people who call themselves conservatives, who say they respect the Constitution and the original intent of its authors, so easily join such a cult.

What they want to conserve is difficult to discern. Certainly not the intent of the authors of the Constitution.

Allan C. Brownfeld

Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.