As a lifelong defender of the United States Constitution, and particularly the Bill of Rights, there has never been any doubt in my mind that the Second Amendment guarantees the right of individuals to bear arms and that means, among other things, guns.
Furthermore, the right to “bear arms” means the right, not only to own guns, but to carry them on one’s person whether concealed or otherwise for the purpose of self defense.
But, just as with many other provisions of the Constitution, the Second Amendment language, consisting of only one sentence, is confusing, imprecise and open to varying interpretations, some of which out rightly contradict my assessment.
II: 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.
Gun control advocates insist that the founding fathers, using this language, meant to restrict the right of the people to keep and bear arms to members of only well regulated militias. After all, that’s what the sentence seems to say.
If founders didn’t intend that meaning, why didn’t they just leave the part about militias out of it and simply provide that the right of the people to keep and bear Arms shall not be infringed?
That would have obviated any confusion, right?
But wait a minute; it’s still confusing. They’re talking about the right of the “people.” Does that language encompass individuals or a collective, i.e., individual citizens, or a group such as a well regulated militia for example?
Thankfully, the United States Supreme Court has clarified that matter, but only recently. The Court has finally ruled definitively that individual’s have the right to own guns. "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense," opined the Court.
A High School in the State of Texas, however, is still using a history textbook which teaches students a synopsis of the Second Amendment that reads: “The people have a right to keep and bear arms in a state militia.”
That interpretation directly contradicts the U.S. Supreme Court.
It’s a clear example of how many education authorities are attempting exploit the confusion in the Second Amendment to rewrite American history in an effort to indoctrinate kids to accept the premise that individual gun ownership is wrong, a problem with society, and should therefore be strictly curtailed if not outright banned.
Even the United States Senate’s official web page referencing the Second Amendment, published after the Supreme Court decisions, states: "Whether this provision protects the individual's right to own firearms or whether it deals only with the collective right of the people to arm and maintain a militia has long been debated."
Again, that flatly contradicts the Supreme Court.
"After five-and-a-half years of litigation, the Supreme Court unequivocally resolved the long-standing debate over the meaning of the Second Amendment," says Bob Levy, one of the lawyers who won the 2008 Supreme Court case. "No one on either side of the gun debate -- with the possible exception of those persons who devised the U.S. Senate's official website explaining the Constitution -- doubts that the Supreme Court has affirmed the individual rights view of the Second Amendment."
"Considering that this year the party in control of the United States Senate tried to ban many semi-automatic firearms and magazines that hold more than 10 rounds, it does not surprise me that their website takes that position," Alan Gottlieb, founder of the Second Amendment Foundation, said. "Congress has shown time and time again that they ignore the two Supreme Court decisions that make it very clear that the Second Amendment is in fact an individual right."
Yes, of course, and I totally agree, but unfortunately there is still considerable confusion about the Second Amendment and its guarantee as to the right of individuals to bear arms.
The Supreme Court hasn’t cleared it all up quite yet. They didn’t, for example determine the validity of concealed carry laws or laws limiting the nature and types of firearms that individuals may own, not to mention bear on their person.
One might think that a strict originalist jurist like Justice Antonin Scalia, for example, would consider the fact that when the Constitution was established as law all firearms of the time were primitive at best, only allowing one shot followed by the time consuming necessity to reload before taking another shot.
With that fact in mind, together with Scalia’s proclivity to interpret the Constitution according to the meaning of the document at the time it was written, it would seem that he would uphold gun control laws restricting individual gun ownership to only the type of weapons available to individuals in the year 1789.
That eventuality, of course, would become the NRA’s ultimate nightmare.
Yet it is quite true that when the Constitution was ratified there was no such thing as machine guns, large magazine automatic pistols, assault rifles, or even simple revolvers which hold six cartridges.
Surely, few reasonable people would argue that there must be necessary limitations to the right of individuals to bear arms. After all, the founding fathers clearly didn’t contemplate that there would ever be a right to of individuals bear arms of mass destruction.
But what are those limitations?
Where does one draw the line?
I think we can look forward to a lot more of these vexing questions and legal problems in the years to come as the judges grapple with the confusion inherent in the Second Amendment and the corresponding right of individuals to bear arms.