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The Right to Bear Arms

October 8th, 2015 Leave a comment Go to comments


We have a discussion about gun rights and gun ownership every time someone decides to use guns to accomplish some horrific act of violence. Unfortunately the discussions are scripted and the outcome predictable. We center our arguments on the Second Amendment, but to very different interpretations of what it means.

As with pretty much every other discussion of current issues historical context can be revealing. In the case of the Second Amendment, during the period leading up to the Revolutionary War colonists became more and more convinced their rights were being violated by the Parliament and began to form militias in order to defend themselves. From the point of view of the Crown, which we must not forget was the legitimate government of the colonies at the time, these militia were mutineers and rebels, and sought to disarm them. It was in fact an expedition sent to seize a cache of arms in Concord, Massachusetts that led to the confrontation on Lexington Green where the “shot heard ‘round the world” was fired.

During the debate over ratification of the Constitution, the most powerful argument against the creation of a national government arose from the specter of Parliamentary abuse before the Revolution. People were afraid of creating a national government that would be powerful enough to trample on the rights of states and individuals. So, as a condition for ratification, Congress was tasked with creating a Bill of Rights that would guarantee freedoms won in the Revolution. It was in this context that the Second Amendment was formed.

The entire purpose of the Bill of Rights was to limit the power of the national government from infringing on inherent rights. The history of the wording of the Second Amendment is torturous (as is the final wording itself), but once adopted, seemed to intend to prohibit the national government from disarming the states, as the Crown had tried to do the colonies before the Revolution. As a limit on the national government, the amendment had no effect on the right of the states to regulate gun ownership, and that right was assumed until 2010. Everyone recognized that people have an inherent right to self-defense, but also recognized that the states have legitimate reasons for regulating and limiting those rights.

This interpretation was the dominant understanding of the amendment throughout the nineteenth and twentieth centuries. In 1939 the Supreme Court acknowledged a right to gun ownership in connection with membership in a State Militia, but the right to individual gun ownership was not seen as protected by the amendment until 2008, in the Supreme Court case District of Columbia v. Heller. That case affirmed a guarantee of the right to own guns for lawful purposes, but also affirmed that the states have a right to regulate gun ownership to support public safety. Thus, even though the Court did rule that people have a constitutional right to own guns, they at the same time acknowledged that the State has legitimate reasons for restricting those rights.

The right to gun ownership arises from a different area of law than the right of the states to maintain a militia. This individual right acknowledges the inherent right of every person to self-defense. That right was inherited in the United States from English Common Law, where it was recognized as a right centuries earlier. In fact, the right of self-defense is not granted, it is inherent. It is a “natural” right.

It is, however, a good thing to reflect on what might be meant by a “natural” right. A natural right is a right one would possess in the State of Nature. The State of Nature is an imagined prehistoric condition where there is no law or civil or political society. Everyone is at perfect liberty to do as they please as long as they do not violate the liberty of others. But Enlightenment philosophers like Locke recognized that there is a danger in the State of Nature in that there is no restraint against the violation of one’s liberty (which includes life) other than the force and violence that can be mustered by the one whose rights are being violated. Therefore that right to use deadly force in defense of life and property is seen as inherent. But it is the need to defend one’s liberty that becomes the basis for the formation of civil and political society (government): the collective protection of liberty.

In the Second Amendment we see both the right to individual and collective self-defense defended. But because we do not live in the State of Nature but rather inhabit a civil and political society the right of self-defense must be balanced with the duty of government to maintain public safety. When gun ownership violates the public safety, the State has a duty to act. This has been affirmed by the Supreme Court.

So the right to gun ownership for lawful purposes is upheld in the Constitution, but the right of the State to regulate gun ownership in support of public safety is also defended. Whenever an event like what happened at Umpqua Community College occurs we hear a call for more regulation of gun ownership as a way of trying to prevent more tragedies. In response we hear a very loud and hysterical group of people who vow to defend their rights to gun ownership to the death.

But while I have heard many proposals for the regulation of gun ownership, I have never heard of a serious proposal to ban guns altogether. Every reasonable person recognizes there are legitimate reasons for owning firearms. At the same time reasonable people should be able to recognize that there are legitimate reasons to limit gun ownership.

The paranoid view is that any regulation of gun ownership is an attempt by the government to trample on individual rights. This view sees the government as the enemy and the only defense of liberty as the force and violence that can be mustered by the individual (and perhaps his fellows). This is a vision of life without civil or political society, a state of lawlessness, where justice comes from the barrel of a gun. It is a minority view, nevertheless it is powerful enough to squelch every attempt at reform. The belief that any individual or group of individuals might successfully defend themselves using violence against the United States government is comedy, except apparently people seriously believe it. Witness the farce of the Governor of Texas calling up the National Guard to defend Texas against an invasion by Obama’s army this past summer. It is at the same time laughable and deeply disturbing. It is absurd. And its cost is the gruesome murders of more and more innocent victims.

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