A right to arms? The real purpose of the Second Amendment

January 2, 2013

Constitution Right to Bear Arms(Editor’s note: After last month’s massacre at Sandy Hook, Washington looks poised to create its first new gun control law in 20 years. Throughout the month of January, we’ll be looking at the history and current landscape of gun control and gun ownership laws.)

The text of the Second Amendment to the U.S. Constitution reads as follows:

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.

Although advocates of gun ownership rights have long claimed that the Second Amendment guarantees an individual right to gun ownership, it wasn’t until 2008, with the District of Columbia v. Heller decision, that the Supreme Court agreed.

Heller actually contrasts, sometimes significantly, with prior Supreme Court rulings on the Second Amendment.

For example, 1875’s U.S. v. Cruikshank held that there is no “right granted by the Constitution” to be found in the Second Amendment; further, Cruikshank held that the Second Amendment operates “solely” to “restrict the powers of the national government” from infringing on the powers of the individual states to regulate guns.

In other words, Cruikshank held that the Second Amendment only operates to vest the powers of gun regulation solely with the states.

In writing for the Heller majority, Justice Scalia seemingly misinterpreted Cruikshank’s holding of “[t]his is not a right granted by the Constitution” to mean that the individual right to bear arms pre-existed the Constitution, which merely codified that existing right in the form of the Second Amendment.

Scalia made no reference to Cruikshank’s statements immediately following those excerpts, which explicitly disqualify any idea of there being an individual right to bear arms.

Nor did Scalia make any reference to the fact that Cruikshank was evaluating the validity of a law that prohibited two or more people from conspiring to deprive anyone of his constitutional rights – and that the ruling held the second count of the criminal indictment (“an intent to hinder and prevent the exercise by the same persons of the ‘right to keep and bear arms for a lawful purpose’”) as invalid because the Constitution grants no such right.

Justice Scalia’s misunderstanding of Cruikshank aside, is it still possible that the Framers intended to codify through the Second Amendment an individual right to firearms, as the Heller majority contends?

It’s possible, I suppose, but it’s a possibility reliant on the assumption that the understandings of the vast majority of state and federal courts since the ratification of the Second Amendment are incorrect.

That possibility is also dependent on the assumption that the understandings of Originalists besides Justice Scalia, most notably Judge Robert Bork and former Chief Justice Warren Burger, are also incorrect.

Bork stated that the gun lobby’s view of the Second Amendment as bestowing an individual right to gun ownership is an intentional “deception.”

Chief Justice Burger has, on numerous occasions, echoed this sentiment.

In 1990, he labeled the gun lobby’s interpretation as “one of the greatest pieces of fraud…on the American People by special interest groups that I have ever seen in my lifetime.”

Burger further argued that the purpose of the Second Amendment “was to ensure that state armies – the militia – would be maintained for the defense of the state.”  Burger, quoting James Madison’s vice president Elbridge Gerry, stated that these state militias were necessary “to prevent the establishment of a standing army, the bane of liberty.”

Although it’s possible that Justice Scalia, unlike Bork or Chief Justice Burger, is uniquely qualified to divine the true intent of the Framers of the Constitution in writing the Second Amendment, it’s much more likely that Scalia was only channeling his own personal views on gun ownership rights when penning the Heller decision.

Either way, the point is moot; thanks to Heller, the Second Amendment does now guarantee an individual right to gun ownership.

Heller’s lengthy discussion of the intent of the Framers is not required to maintain the decision’s legitimacy; it was included to lend to the appearance thereof.

What this actually means for current and prospective gun control laws will be covered in forthcoming posts this month.