“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.”
- Second Amendment, U.S. Constitution
The Second Amendment seems to guarantee an individual right to keep and bear arms, but some (primarily academics) insist that the amendment protects only the right of the people collectively through the State to have a state guard or militia. I support the individual interpretation for several reasons:
- The Framers of the Bill of Rights clearly contemplated an individual right. Thomas Jefferson’s statement is typical of countless others: "No freeman shall ever be debarred the use of arms."
- The Bill of Rights is all about individual rights, not collective rights. The term “people” is distinct from the term “state.” If this is a collective right, it is out of place in the Bill of Rights.
- If, at a constitutional law conference, I presented a paper arguing that the First Amendment right of a free press simply protects the right of the state to publish a state newspaper, I’d be laughed out of the room. Why apply that reasoning to the Second Amendment?
- The very words of the amendment imply an individual right. “Keep” is the right to own and possess. “Bear” is the right to carry.
The Supreme Court dodged this question for decades but finally addressed it in District of Columbia v. Heller (2008), striking down a D.C. law that banned handgun possession and allowed only nonfunctional firearms at home. In McDonald v. City of Chicago (2010), the Court held that the Second Amendment applies to the states as well as to the federal government and therefore struck down Chicago’s handgun ban. And in New York State Rifle & Pistol Assn. Inc. v. Bruen (2022), the Court held that the Second Amendment right to keep and bear arms includes the right to carry a handgun for self-defense and that the constitutionality of firearms legislation must be measured in light of historical practices at the time the Second Amendment was adopted. The Foundation for Moral Law filed amicus briefs in several firearms cases, including Heller and McDonald.
With these decisions, the debate moved on from whether the right is individual or collective. The questions now include:
- What do we mean by “arms”? Clearly, this includes pistols, revolvers, rifles and shotguns. But does it include machine guns, bazookas, anti-aircraft guns, or drones?
- What does it mean to be “infringed”? Banning or confiscating guns clearly is an infringement. So is allowing guns only if you are on a list approved by the chief of police. But how about a waiting period or background check? A permit requirement or a requirement that the owner take a gun safety course? Prohibiting firearms for felons and those with mental illnesses?
Ultimately, these questions focus upon a deeper question: What is the nature of the right to keep and bear arms? Is it only the right to hunt and engage in target practice? Does it involve the right to self-defense or the defense of the nation? What about the defense of the community against tyranny, as James Madison says in Federalist No. 46 and Alexander Hamilton in No. 28?
Today’s courts often distinguish between fundamental and nonfundamental rights, although the Founders did not think in such terms. Any infringement upon fundamental rights, such as free speech, will be examined with strict scrutiny and will be justified only if the government has a compelling interest that cannot be achieved by less restrictive means. Nonfundamental or ordinary rights, such as property and contract rights, can be infringed whenever the government can show a reasonable relationship to a legitimate state purpose, a much easier hurdle to clear.
So how do we evaluate the right to keep and bear arms? Before Heller, McDonald and Bruen, legal scholars generally considered this right nonfundamental. But these decisions suggest that it is a more basic right that must be evaluated with strict scrutiny. A course in gun safety is a good idea if properly taught … but we don’t restrict the guarantee of free speech to those who have completed a course in public speaking, or the right to publish a newspaper or website to those who have a journalism degree.
Thomas Hobbes (1588–1679) looked to nature to find natural rights. He argued that, because any animal will defend itself against attack, the right to self-defense must be a fundamental and unalienable right based on the law of nature, a right so fundamental that a person may not surrender it.
One could argue that firearms are essential to self-defense. If the state prohibits felons from owning firearms, is the state denying that person the basic right of self-defense? Strict scrutiny seems to require that this right be denied only to those convicted of violent and dangerous felonies and mental patients who are truly dangerous. A recent Third Circuit decision (Range v. Attorney General, 2023) held that a man who made false statements to obtain food stamps could not be deprived of his Second Amendment rights, because the “record contain[ed] no evidence that Range poses a physical danger to others.”
The Gun Control Act of 1968 banned firearms for a host of convicted criminals, also providing a mechanism by which such persons may apply to the Secretary of the Treasury for restoration of their Second Amendment rights. However, in 1992, then-Rep. Chuck Schumer (D-NY) pushed through a rider prohibiting the Bureau of Alcohol Tobacco, Firearms, and Explosives (ATF) from using federal funds to restore gun rights. But the prohibition applies only to the ATF, so President Trump and Attorney General Bondi are looking for ways of working through other departments to restore Second Amendment rights in appropriate cases.
This is only a start, but it’s a great first step!
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Pastor of Woodland Presbyterian Church of Notasulga, Alabama (woodlandpca.org). He may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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