I’ve been fairly geeked about the challenge to the Washington D.C. gun control ordinance currently in front of the Supreme Court. This might be the first time the Court directly addresses whether the Second Amendment provides for an individual or collective right to bear arms. I believe it is a collective right.
Some legal scholars believe the amendment protects a right to keep and bear only those firearms that are necessary for ongoing service in a state militia. Other equally distinguished scholars hold the view that the amendment guarantees individual Americans the right to possess and use firearms, even when the guns are not related to service in a militia.The US Supreme Court is set to hear oral arguments Tuesday in a potential landmark case that could settle the question once and for all.
The high court last addressed the issue almost 70 years ago in a case called US v. Miller. But that decision left the debate unresolved.
The Second Amendment says: “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.”
First, the text of the amendment can be read literally to support an individual right to keep and bear arms but it also can be read to provide no such right. Because there isn’t a clear answer in the text I think we need to look elsewhere, such as history, for an answer.
The early United States had a serious distrust of a standing army and only had one official battery, stationed at West Point, after the Revolutionary War ended. Instead of having a large, professional, standing army, the United States relied on the state militias. In 1791, the year the Bill of Rights passed, the United States reorganized and expanded the standing army. The Second Amendment was included in the Bill of Rights to provide assurances to the states that the standing army would not replace the militias (remember, the founders distrusted standing armies). The militias have subsequently become the National Guard.
Second, the Bill of Rights was not initially considered applicable against the states as the Supreme Court held in Barron v. Baltimore. This means that a state government had a right to limit arms within its own territories. It wasn’t until the 14th and 15th Amendments were passed after the Civil War that courts started applying parts of the first ten amendments (Bill of Rights) to the states (and even that took a long while). For the Second Amendment to apply to the states, the Supreme Court will need to find that the Second Amendment was incorporated by the 14th and 15th Amendments.
I’ve seen some supporters of the argument for an individual right to bear arms use a few choice quotes from some of the founding fathers, such as Patrick Henry but I don’t think they are the only source of the founders’ intent and are not dispositive.Â When I see the quotes, context has not been provided and several allude to the responsibility of all men to join their local militias (conscription?).
As such, I don’t think the Second Amendment provides an individual right to keep and bear arms. Furthermore, it is up to states to decide through their police powers when and what type of guns and weapons can be possessed and used within its borders. Do I think people should be allowed to own guns, yes. But there isn’t a Constitutional right.
That said, I don’t think the Federal government has the power to restrict your possession of guns. However, it can and does use its commerce power to limit the transport of guns across interstate lines and when the sale of a gun will affect interstate commerce.