Constitutionally Confirmed

Interpreting the Second Amendment

artwork by Jordon Batura

artwork by Jordon Batura

The Supreme Court of the United States will decide for the first time in the nation’s history whether the Second Amendment of the United States Constitution, commonly known as the “right to bear arms,” is an individual or collective right.

The Supreme Court will rule on District of Columbia v. Heller (previously known as Parker v. District of Columbia), a case which challenges the constitutionality of a 30 year old ban on handguns in the District of Columbia. The Supreme Court, which heard oral arguments in March, will hand out its decision in June on what kind of right the second amendment protects.

The collective rights interpretation of the second amendment is one that has been adopted by 9 out of 11 circuit courts. Collective rights proponents argue that the right to bear arms is bound by an individual enrollment in a militia and they claim that the purpose of the second amendment was to ensure that the state militias would be maintained for the safety of the state.

In contrast, the individual rights interpretation of the second amendment contend that the right to bear arms is not contingent on that individual’s service to the militia or on the relation of the weapon in question to militia use. A third viewpoint, which states that the second amendment grants an individual’s right to bear arms as long as the weapon is related to militia service has been called both “semi-individual” and “quasi-collective.”

I believe that the second amendment confers an individual’s right to bear arms. This view not only goes along with the common-sense understanding of the right to bear arms but also with the text, history, and placement of the amendment within the Bill of Rights.

As noted by the District of Columbia Circuit Court of Appeals, the second comma in the second amendment splits the amendment into two clauses: the prefatory clause and operative clause. Consequently, just as a preface in a book does not bind the content of the book, the prefatory clause in the second amendment does not legally bind the more inclusive rights of the second amendment.

Instead, as noted in Parker, the clause only cites its “most salient political benefit—and thus the most appropriate to express in a political document.”

Furthermore, “the people” as it appears in the second amendment has already been ruled to be as meaning individuals by the Supreme Court in United States v. Verdugo-Urquidez and other amendments (the 1st and 4th amendment) that include “the people” have been clearly defined as individual rights.

There has been significant debate over whether to keep and bear arms refers to one right (keep and bear arms) or to two rights (keep arms or bear arms). Regardless, the word “keep” has an apparent private and individual connotation.

The word “bear” traditionally implies a military use, but it does not do so exclusively and when read in conjunction with “keep,” can be held to have an individual meaning.

The right of individuals to keep and bear arms for purposes such as hunting and self-defense predates the formation of the Constitution. Accordingly, the second amendment expresses that the right (instead of a right) to bear arms “shall not be infringed.”

It is interesting that the second amendment is the only amendment within the bill of rights with a prefatory clause. Nonetheless, various state constitutions such as New Hampshire include an introductory clause with the amendment which describes a purpose but does not narrow the scope of the amendment.

The Second Amendment’s placement within the bill of the rights also seems to suggest that it is an individual right. Amendments 1, 3, 4, 5, 6, 7, and 8 (amendments one through four were grouped together before ratification as amendments three through six) all provide individual rights so it would seem that the second amendment would be an aberration if it did not provide an individual right as well.

As the D.C. Circuit noted, canon of construction known as “noscitur a sociis” applies here in which an ambiguous statue is thought to have a certain meaning by reference to associated statues.

The standard of review in this case should be decided in later cases. What we do know is that the second amendment (consistent with other amendments such as the first amendment) is not an absolute right. However, it’s generally recognized that guns are not and should never be contraband simpliciter (or illegal for all purposes).

The standard of review necessarily falls in between the two extremes. Because Supreme Court review on the second amendment is almost non-existent at this point and just as the standard of review for first amendment clauses were decided at various times, the standard of review should be decided at a date in the future.

This article appears on page 11 in Vol. 4, Issue 6 -- April 2008

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M.E. posted on 2008-04-30

I agree wholeheartedly with the writer of this article. Some link the right to own arms and use them to participation in the military, but this is due largely an flawed view of the Constitution's purpose. The Constitution was intended to protect the people from the government, not the other way around. With Presidential authority to federalize a state militia (National Guard) at any given moment, the state militias have lost their original purpose of protecting a state from tyranny, be it foreign or domestic. With that being the case, restricting the right to firearms to members of the militia would deny the rest of the populace the means to defend themselves from an unjust government. Author Thomas Sowell points out in Vision of the Anointed that certain political pundits seek to circumvent the people's will, as expressed through ballot boxes nationwide. Whether we choose to apply that to today's situation overseas or to social policy changes, the situation is the same. If the federal government has all the power, how can the populace or the states seek recourse when injustices become intolerable?

Many tend to move dramatically toward one end of the spectrum or another. Either eliminate all private firearms, or allow every form to every citizen. I have already spoken regarding the former, but to counter arguments against the latter stating that violent crime would increase, that we would see excalation in the kind of weapons used, I would offer this perspective. First, criminals already have access to assault rifles and small-caliber automatics. Legalizing those kinds of weapons would not change that or significantly facilitate obtaining them. Second, Switzerland has one of the most well-armed citizenries in the world. All male citizens are conscripted, briefly trained in combat, and given a fully automatic assault rifle. Nonetheless, Switzerland enjoys one the lowest rates of gun crime in the world.

We do not need unarmed the people in order to control crime. We need a citizenry that is well-informed, well-educated, and well-armed. Right now, we are none of those, and therein lies our problem.