The 2nd Amendment: It Doesn't Mean What Some Think it Means
I don't know about you, but I'm tired of hearing gun enthusiasts clinging to the 2nd amendment as an absolute. I'm not talking about gun lovers who agree with gun restrictions, I'm talking those people who think the 2nd amendment is a Constitutional right for an individual to own any type of gun without restriction. I'm tired of hearing "it's my constitutional right to have an assault weapon and your attempt to ban it is infringing on my rights" when that's just not the case. So here's a little history of the 2nd Amendment to serve as a reminder that these gun enthusiasts have it all wrong.
Anti-Federalists and The Bill of Rights
There was a movement that opposed the creation of a stronger US federal government and thus opposed the ratification of the Constitution in 1788. This was called the Anti-Federalism movement. They preferred the states having more power, preferring the Articles of Confederation, fearing the Constitution would lead to an eventual monarchy. This is the movement that helped to create the Bill of Rights. It is critical to note that there is a distinction between the Constitution and our Bill of Rights that contains amendments that have been continuously added to since 1791.
The Bill of Rights was not a part of the original Constitution and in fact, some of the Founding Fathers even stated that the Bill of Rights was unnecessary. Some Federalists thought that adding in a Bill of Rights determining what the federal government could not do, it would imply that they could do everything else. They also feared that extra provisions would bring about misinterpretation. However, in order to secure the Constitution as it was originally ratified by some states, it was decided to add a declaration of rights and insert them at the end of the Constitution. It can be argued that our Founding Fathers understood that these articles in the Bill of Rights were a separate entity from the Constitution and might need to be ratified, or amended, as time progressed and the needs of the country changed. It was also understood that the rights included did not mean the people were not granted other rights- hence the 9th Amendment. The Bill of Rights was not ratified until December 1791- 3 years after the Constitution.
The Right to Bear Arms
Let's look at the proposed text from James Madison for the "Right to Bear Arms"...
"The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."
Now let's look at the phrasing in the final Bill of Rights...
"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."
See commonality? The key phrase is a "well regulated militia". How about a little history of the American militia from Britannica...
"In colonial America the militia, based on the tradition of the fyrd, was the only defense against hostile Indians during the long periods when regular British forces were not available. During the American Revolution, the militia provided the bulk of the American forces as well as a pool for recruiting or drafting of regulars. The militia played a similar role in the War of 1812 and the American Civil War. After that conflict, however, the militia fell into disuse. State-controlled volunteer units, referred to as the National Guard, were formed in most states and came to serve a quasi-social function. Many of these volunteers were veterans of the Civil War, and many were from the middle classes. In the 1870s and ’80s, such units were called upon by state governors to break strikes. At that time these state units constituted the nation’s only trained reserve. In the 20th century, despite the parallel growth of designated reserve forces, the National Guard was called into federal service in both world wars and continued to be used in emergencies by both the state and the federal government."
If we look at the text of the 2nd Amendment, we see that in order to have a well regulated militia, we have the right to bear arms. A militia is individuals liable to be called to fight in the military. The National Guard in today's culture is the acting militia as they are trained soldiers that are only called upon by the state in the event of an emergency. We can also argue that this right, if not simply reserved for the National Guard, could extend only to individuals that are subjected to be called to military service. In other words, this is individuals who are draft eligible.
The argument is often made that this Amendment is guaranteeing an individual right rather than a public need. Interpreting it as an individual need without regards to a militia is to completely ignore half of the amendment. If we are going to ignore half of the amendment, can we ignore it all? No. We cannot simply ignore half of the amendment to argue 1 point of view. Especially when you consider the historical context within which it was written. Anti-Federalists wanted the ability to form a state militia to fight back any potential of the federal government attempting a takeover of the states. This would lend credence to it being an individual right only in the context of an individual being eligible for activity in a state militia if the federal powers tried to overthrow the state powers.
Prior to the 2008 District of Columbia v. Heller Supreme Court Ruling, the Supreme Court upheld the ruling that the 2nd Amendment was only relevant in relation to a well-regulated militia rather than an individual right and that states could assert limitations. The 2008 decision, however, was the first to state that the 2nd Amendment was an individual right. It did also state that the right was not unlimited. It gave the verdict that the 2nd amendment, just like other rights, had limitations, and you can not keep and carry whatever weapon you want for whatever purpose you have. This ruling overturned previous rulings showing that clearly there is room for interpretation instead of an absolute right. It leaves open the door for future rulings to overturn. The dissension on this case acknowledged that the historical context of the right was for a state militia to fend off a federal military attack.
The Founding Fathers discussed whether or not to make the Bill of Rights applicable on the state level or just on the federal level. It was decided that these amendments would only apply to the federal government. It wasn't until the 14th amendment that the door was opened for the rights to be applied to the state governments also.
Let Me Sum it All Up
1) As with all amendments, these are additions to the Constitution and not a part of the founding framework.
2) The Bill of Rights was originally only intended to apply to the federal government, not the state.
3) The historical context of the time was that of a country that had needed a militia to fight for their rights and wanted to ensure that states would not be overtaken by the federal rule.
4) The language of the 2nd Amendment includes "a well-regulated militia".
5) Historical Supreme Court cases ruled that the 2nd Amendment was not an individual right.
6) Amendments to the US Constitution have been created and then changed by an additional amendment.
7) The landmark decision of the Supreme Court in the case of District of Columbia v. Heller stated that the right is not unlimited and does not mean that any weapon can be carried for any reason.
What it all boils down to is that the 2nd Amendment is not absolute. It is not a law that allows unfettered access to whatever kinds of arms you want. If other amendments have been changed there's no reason to think that this law also cannot be (let's remember the Bill of Rights was written AFTER the Constitution). The 2nd Amendment can be altered. We can change laws and ban assault weapons and high capacity magazines. We can ban bump stocks. We can do so much more than just standing around and telling kids to take a CPR class as if that will help when someone has taken a bullet to the head. The Supreme Court determined that the 2nd Amendment related to arms for the natural right of self-defense and an assault weapon is not for an individuals self defense.
So let's all say it together now... "The 2nd Amendment is NOT absolute. Assault weapons are not for defense. Ban assault weapons NOW"