The Second Amendment was intended to codify an individual right to bear arms

January 8, 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.)

Week 1 of the series: A right to arms? The real purpose of the Second Amendment

“Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms … The right of citizens to bear arms is just one guarantee against arbitrary government, one more safeguard, against the tyranny which now appears remote in America but which historically has proven to be always possible.”

Hubert H. Humphrey, native son of blue-state Minnesota gave us the above quote.

In a series of posts begun last week, a colleague of mine disagreed with the former Vice President, and argued that the Supreme Court either misinterpreted, or just plain ignored, its own precedent in holding that there is an individual right to arms.

The Court’s precedents do not lean against a finding of an individual right.  Instead, they actually require the opposite.

In U.S. v. Cruikshank, it is easy to focus on the language that the right to bear arms “is not a right granted by the Constitution,” (interpreting this to mean it doesn’t exist), and leave it at that.

This is a mistake.

“The right . . . of ‘bearing arms for a lawful purpose’ . . . is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.“

So if Cruikshank holds there is no right to bear arms, what’s the point of the second sentence?

Reading the first sentence and skipping the second misses the point.  The second sentence makes it clear that the Court believes the right to bear arms was not granted by the Constitution.  It didn’t come into being with the Constitution.  It already existed.

“The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States.”  That’s the logic of Cruikshank.  The Court was referring to the First Amendment.  But it applied almost the exact same reasoning with regard to the right to arms.

If the reasoning of Cruikshank leads to the conclusion that there is no individual right to arms, does that also mean there is no right to assembly?

As far as the argument that court in Cruikshank and Presser v. Illinois understood the Second Amendment to be inextricably intertwined with the militia, there’s no basis for this.  The word militia does not even appear in Cruikshank.  It had nothing to do with the militia.

Presser concedes that there is a right to arms.  It simply holds that a law barring a private military organization does not infringe that right.  Far from holding that only those in the organized militia had the right to bear arms, Presser recognized that “all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states.”

It is as George Mason said:  “I ask, sir, what is the militia? It is the whole people, except for a few public officials.”