Right to Bear Arms
The central principle of classical liberal thought is that every human being has an inalienable right to self-preservation. One corollary is that citizens should have a right to the tools they need to defend themselves against threats to their lives, which may arise either from a failure of the government to protect them or from the government itself. Yet some restrictions on civilian access to weapons are manifestly necessary, especially in a world where the most lethal weapons have truly awesome destructive power. America’s federal Constitution and most of the state constitutions have formalized a right to arms in general terms. The scope and nature of the right, however, have been subject to considerable controversy and doubt.
The 2nd Amendment to the U.S. Constitution provides that “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.” Recent debates about the meaning of this provision have focused on whether it protects a right of individuals to keep and bear arms, or rather a right of the states to maintain military organizations like the National Guard. The lower courts have been sharply divided on the issue, and as of press time, the U.S. Supreme Court will shortly be ruling on a pending case, District of Columbia vs. Heller. The stronger legal arguments favor the individual rights interpretation, but even if the Supreme Court accepts those arguments, it could recognize a right too narrow in scope to contribute meaningfully to the preservation of civil liberty.
The American decision to constitutionalize a right to arms has deep roots in British history. In the early British militia system, ordinary civilians were required to arm themselves and submit to part-time, unpaid military training. This system of in-kind taxation developed primarily because the Crown could not easily afford to keep large numbers of professional troops except when Parliament was willing to provide funds for European wars. The taxpayers naturally resented these militia obligations, and kings just as understandably desired to acquire more tractable and efficient tools of royal policy. During the 17th century, the British people lived through a civil war in which they got firsthand experience of life with professional troops in their midst, and they saw how kings could use military power—including the power to regulate the militia—against their political opponents. In 1689, the Crown was forced to accept a Bill of Rights that included a provision guaranteeing the right of Protestants to “have arms for their defense suitable to their Conditions and as allowed by Law.”
English history and its own colonial experience had taught America’s founding generation that central governments are prone to use military power to oppress the people. Nevertheless, experience during our Revolutionary War also convinced America’s most important leaders that the traditional, decentralized militia system was inadequate to protect the nation’s security. Accordingly, the Constitutional Convention decided that Congress must be given virtually unfettered authority to raise and keep armies, during war and peace alike, and to strengthen the existing state militias by imposing a uniform system of regulations, training, and command on them.
Anti-Federalists strenuously objected to this massive shift of military authority from the states to the national government, which they thought would leave individual states and their people vulnerable to the kind of oppression that was then common in Europe. Supporters of the proposed constitution responded that the new governmental structure had effective safeguards against capture by abusive politicians, and that Americans, unlike Europeans, would in any event be almost impossible for a despot to subdue because they were an armed people.
The 2nd Amendment was undoubtedly meant to respond to Anti-Federalist fears. Together with the 2nd Amendment’s prefatory allusion to a well-regulated militia, this consideration has led many courts and commentators to believe that the amendment guarantees a right of the states to maintain a military counterweight to the federal government. There are, however, far more powerful reasons in the text to interpret the amendment to guarantee individual citizens a private right to keep and bear arms. First, the 2nd Amendment protects a “right of the people.” Identical language is used in the 1st and 4th Amendments to refer to rights that indubitably belong to individuals, and the term the people is never used in the Constitution to refer to any government. Second, the 2nd Amendment’s prefatory phrase is grammatically absolute, and the operative clause is a command. Absolute phrases do not limit or qualify any word in an operative clause to which they are appended. If a dean announces, “The teacher being ill, class is cancelled,” the class is cancelled regardless of whether the teacher is actually ill. Third, the organized militia is and always has been a small subset of “the people.” Fourth, the “states’ right” interpretation implies that the 2nd Amendment silently repealed or amended two separate clauses of the original Constitution: a provision giving the federal government virtually plenary authority over the militia and a provision forbidding the states to keep troops without the consent of Congress. There is no evidence suggesting that anyone thought the 2nd Amendment would have this effect. Indeed, there is no evidence that anyone alive at the time of its framing thought that the 2nd Amendment protected a right of states rather than of individuals.
Like the rest of the Bill of Rights, the 2nd Amendment occasioned little controversy. Its effect was primarily to confirm that the original Constitution did not empower the new federal government to disarm the citizenry under the pretense of regulating the militia. What we think of as “gun control” today was a matter reserved to the state governments. Some states had provisions in their own constitutions protecting a right to arms and some did not, and the nature of weapons regulations varied from place to place. Adoption of the 2nd Amendment had no effect on the authority of state governments to make their own decisions about civilian access to guns.
For well over a century after the founding, the federal government imposed virtually no regulatory control on firearms, and federal regulations even today impose only limited restrictions on the access of most Americans to ordinary small arms like pistols, rifles, and shotguns. Some states and localities have adopted much more restrictive rules, and a few jurisdictions come close to denying their citizens any right to have effective tools for self defense against criminal violence. Because the 2nd Amendment does not confine the discretion of state and local governments, the most practically important questions about the federal right to arms arise under a different provision of the Constitution.
The 14th Amendment, adopted in the aftermath of the Civil War, forbids state and local governments to abridge “the privileges or immunities of citizens of the United States” or to deprive any person of life, liberty, or property without “due process of law.” Historical evidence strongly indicates that the Privileges or Immunities Clause had as one of its objects to protect individuals from being disarmed. It is less clear whether this clause was meant to protect against all forms of unreasonable regulation or only to protect against discriminatory schemes, such as the efforts of some state governments to disarm the recently freed black population. In any event, the U.S. Supreme Court long ago rendered this debate academic by interpreting the Privileges or Immunities Clause to protect only a few rights peculiar to federal citizenship, such as the rights to interstate travel and to petition Congress.
During the 20th century, however, the Supreme Court made most provisions of the Bill of Rights applicable to the states through the 14th Amendment’s Due Process Clause, using a doctrine under which the Court assesses for itself whether various governmental restrictions on individual liberty are permissible. But the Court has not yet decided whether to make the 2nd Amendment applicable to the states. This fact, combined with the absence of meaningful Supreme Court doctrine about the scope of the 2nd Amendment, has made the status of the right to keep and bear arms one of the most important unresolved issues in American constitutional law.
Until recently, the lower federal courts had uniformly refused to recognize any meaningful individual right to keep and bear arms. That has now changed. In 2001, a federal court of appeals upheld a challenged federal gun control statute, but adopted the individual right interpretation of the 2nd Amendment. In the case that is now before the Supreme Court, another court of appeals held that the District of Columbia’s firearms regulations—which are technically federal laws and which prohibit virtually all civilians from keeping handguns or operable rifles and shotguns in the home—are unconstitutional under the 2nd Amendment. As of November 2007, the Supreme Court has agreed to review this decision, and it now seems likely that a new era of constitutional jurisprudence will soon begin.
Whether in this case or some other, the Supreme Court is bound eventually to resolve several major issues. The Court could adopt the discredited states’ right theory and thereby effectively render the 2nd Amendment a dead letter. Even if it adopts the individual right interpretation, it could conclude that only the federal government is affected, thereby insulating state and local infringements on the right to arms from constitutional challenge. Assuming, however, that the justices do not exercise either of these options, the most important initial decisions are likely to involve the stringency with which the Court requires governments to provide reasoned justifications for their regulations. The approach most favorable to civil liberty, and most consistent with classical liberal principles, is exemplified by much existing doctrine under the 1st Amendment’s Free Speech Clause. Under this approach, courts would require governments to demonstrate that significant restrictions on civilians’ access to weapons are narrowly tailored to serve a compelling public interest. Many gun control schemes that disarm law-abiding citizens and leave them vulnerable to criminal violence would be unable to survive judicial scrutiny under this approach, especially in cases where the regulation’s contribution to public safety is speculative or implausible. An alternative model, exemplified by the Court’s treatment of most economic regulations, would defer almost completely to legislative judgments about the utility of gun control regulations. All regulations, no matter how ineffective or counterproductive, would be upheld under this approach if a court could imagine some legitimate goal that the legislature might have been trying to achieve. Between these two poles, of course, there are intermediate possibilities.
The future of the right to arms is in considerable doubt as a matter of constitutional doctrine. American courts, including the Supreme Court, have generally shown little inclination to develop robust protections for this right, although we may hope for that to change. Interestingly, the trend among legislatures has been much more favorable to liberty. Congress has never tried to disarm the civilian population and has not enacted any truly onerous gun control measures in many years. At the state level, where the most aggressive restrictions have appeared, many jurisdictions have significantly liberalized their laws in recent years. Most notably, a large majority of states now permit almost all law-abiding adults to obtain a license to carry a concealed weapon in public. This measure was widely regarded as a dangerous experiment, especially in states with large urban populations, but misuse of this right has proved to be virtually nonexistent. Individual citizens have often used their weapons to save lives and stop crimes, and the mere existence of these armed civilians may be having a significant deterrent effect on violent crime. Here, as in so many other areas of human life, free men and women have proved that it is easy to underestimate the beneficent power of individual responsibility and to overestimate the ability of governments to improve our lives by curtailing our liberty. Perhaps it is not too much to hope that the Supreme Court will recognize this enduring truth when it next interprets our Constitution’s guarantee of the right to keep and bear arms.
Kates, Don B., Jr. “Handgun Prohibition and the Original Meaning of the Second Amendment.” 82 Michigan Law Review 204 (1983).
Levy, Leonard W. Origins of the Bill of Rights. Chapter 6. New Haven, CT: Yale University Press, 1999.
Lund, Nelson. “A Primer on the Constitutional Right to Keep and Bear Arms.” Policy Paper No. 7, Virginia Institute for Public Policy, June 2002. Available from http://www.virginiainstitute.org/publications/primer_on_const.php
———. “The Second Amendment, Political Liberty, and the Right to Self Preservation” 39 Alabama Law Review 103 (1987).
Malcolm, Joyce Lee. To Keep and Bear Arms: The Origins of an Anglo-American Right. Chapters 1–7. Cambridge, MA: Harvard University Press, 1994.
Reynolds, Glenn Harlan. “A Critical Guide to the Second Amendment.” 62 Tennessee Law Review 461 (1995).
Originally published .