Myth: The Second Amendment guarantees the individual right to own a gun.
Fact: The Supreme Court has always interpreted this as a state's militia's right, not an
Over the centuries, the Supreme Court has always ruled that
the 2nd Amendment protects the states' militia's rights to bear
arms, and that this protection does not extend to individuals. In fact,
legal scholars consider the issue "settled law." For this reason,
the gun lobby does not fight for its perceived constitutional right to
keep and bear arms before the Supreme Court, but in Congress. Interestingly,
even interpreting an individual right in the 2nd Amendment presents the
gun lobby with some thorny problems, like the right to keep and bear nuclear
The Second Amendment states:
"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
Pro-gun advocates claim that this amendment guarantees their individual
right to own a gun, and that gun control laws are therefore a violation
of their constitutional rights. In fact, the term "violation of our
Second Amendment rights" has become a battle cry in gun lobbyist literature,
repeated everywhere in their editorials and essays.
However, this raises a fascinating observation. If gun control laws
are so obviously a violation of the Second Amendment, then why doesn't
the National Rifle Association challenge them on constitutional grounds
before the Supreme Court? The answer is that they know they face certain
defeat, for reasons we shall explore below. Consequently, the NRA has abandoned
all hope in the courts.
Instead, the NRA has chosen to lobby Congress to prevent gun control
legislation, and has become in fact one of the most powerful lobbies on
Capital Hill. This is a supreme and exquisite irony, given the conservative
and libertarian's love of constitutions and hatred of democracy. But, at
any rate, the NRA is fighting for its perceived constitutional rights on
Capital Hill, by bribing our legislators with millions of dollars in campaign
The reason is because the Supreme Court -- this nation's final arbiter
on the interpretation of the Constitution -- has always ruled
that the Second Amendment does not extend the right to keep and bear arms
to individuals, but to the well-regulated militias mentioned in the first
part of the amendment. Specifically, these are militias that are regulated
by the federal and state governments. Article I, Section 8 authorizes Congress:
"To provide for calling forth the militia to execute the laws
of the union, suppress insurrections and repel invasions; to provide for
organizing, arming and disciplining the militia, and for governing such
part of them as may be employed in the service of the United States, reserving
to the states respectively the appointment of officers, and the authority
of training the militia according to the discipline prescribed by Congress."
The Founders were passionately opposed to standing peacetime armies
-- in fact, Thomas Jefferson listed it as one of their grievances against
the British Crown in the Declaration of Independence. Intent on eliminating
this evil, they created a system whereby citizens kept their arms at home
and could be called by their state militias at a moment's notice. These
militias eventually became the states' National Guard, and the courts have
always interpreted them that way.
In 1886, the Supreme Court ruled in Presser vs. Illinois that
the Second Amendment only prevents the federal government from interfering
with a state's ability to maintain a militia, and does nothing to limit
the states' ability to regulate firearms. Which means that states can regulate,
control and even ban firearms if they so desire!
Even so, this left a question about how much the federal government
can limit a citizen's right to own a gun. In 1939, the Supreme Court
addressed this issue in United
States vs. Miller. Here, the Court refused to strike down a law prohibiting
the interstate commerce of a sawed-off shotgun on the basis of the Second
Amendment. Rejecting the argument that the shotgun had "some reasonable
relationship to the preservation or efficiency of a well-regulated militia,"
the Court held that the Second Amendment "must be interpreted and
applied" only in the context of safeguarding the continuation and
effectiveness of the state militias.
In other words, the federal government is free to regulate and even
ban guns so long as it does not interfere with the state's ability to run
a militia. Since then, both the Supreme and lesser courts have consistently
interpreted the right to bear arms as a state's right, not an individual's
right. At times they have even expressed exasperation with some gun advocates'
misinterpretation of the Second Amendment.
In United States v. Warin, the Sixth Circuit Court of Appeals
in 1976 upheld the conviction of an illegal gun-owner who argued that his
Second Amendment rights had been violated. In pointed language, the court
wrote: "It would unduly extend this opinion to attempt to deal with
every argument made by defendant...all of which are based on the erroneous
supposition that the Second Amendment is concerned with the rights of individuals
rather than those of the states."
In 1972 Justice William O. Douglas wrote: "A powerful lobby dins
into the ears of our citizenry that these gun purchases are constitutional
rights protected by the Second Amendment....There is no reason why all
pistols should not be barred to everyone except the police."
Gun advocates have bitterly decried the "activist courts"
that have supposedly changed the plain meaning of the constitution. But
over 100 years of courts have interpreted a states'-rights meaning, and
so has a broad body of constitutional scholars. Gun advocates simply have
a different "plain meaning" of the constitution than everyone
else, one that coincidentally legalizes their desired goal of owning weapons.
The only apparent recourse for gun advocates now is to reject the system
of judicial review that has led to a perfect record of court defeats. But
the alternative is even worse: trusting Congress to pass laws that respect
our constitutional rights. On all other issues but gun ownership, the idea
is anathema to conservatives and libertarians.
But even accepting the gun lobby's interpretation of the Second Amendment
does not spare the gun owner from gun control. The amendment simply states
that the people have a right "to keep and bear" arms. It says
absolutely nothing about regulating them for safety, design or caliber.
The gun lobby argues that the lack of of such language means that individuals
are free to own any arms they please, and government cannot use constitutional
silence to infer permission to regulate them. But this isn't true; look at the First Amendment.
It simply says that
"congress shall make no law... abridging the freedom of speech" -- yet the government
regulates countless forms of speech -- slander, malicious falsehoods, fraud,
insider trading, etc. -- and these regulations are upheld by the Supreme
Court. The same principle applies to the regulation of guns.
This point becomes especially important when considering the regulation
of arms by category.
For example: do the people have a right to own nuclear weapons? (Pro-gun
advocates contemptuously call this the "nuclear straw-man argument,"
yet they have not even come close to providing a satisfactory answer to
it.) How about chemical and biological weapons? Tanks? Battleships? Bombers?
In a society where people get drunk, angry, jealous, self-destructive and
mentally ill, you certainly wouldn't want the unregulated sale of nuclear
weapons on the market. Prohibition of such arms seems like the best thing
to do, but, strictly speaking, that too would be a violation of the Second
Some pro-gun advocates admit that a literalist interpretation allows
the right to keep and bear all arms, including nuclear weapons,
and that this is surely archaic. Certainly the Founders could not have
foreseen or intended this situation. However, pro-gun advocates claim the
correct reaction of modern America should be to amend the constitution
to exclude ownership of nuclear weapons; creatively interpreting the constitution
is the wrong way.
This is a curious argument, for a couple of reasons. First, the entire
rationale of an individual right to keep and bear arms is to defend against
a tyrannical government. But to surrender an advantage as overwhelming
as nuclear weapons and smart weaponry to the government is irrational.
Given the fanaticism of the gun lobby to protect themselves from government
tyranny, this meek acquiescence towards weapons of terrible destruction
is more than little strange, and begs explanation. It suggests that, down
deep, the gun lobby is not really serious about its claim that government
threatens them. (How could they be, in a democracy with high-speed, mass
communication?) What is more likely is that they feel the need to empower
themselves, and firearms are sufficient to fulfill that need.
The argument is also strange because it concedes a point to gun control;
namely, that there are some weapons so deadly that they should not be allowed
in society. That is exactly what gun-control advocates have been arguing,
and you don't need nuclear weapons to achieve the feared results; the U.S.
already has the high murder statistics to prove it with handguns alone.
The argument is also strange because the gun lobby fervently hopes
to avoid public mobilization on a constitutional amendment limiting the
right to keep and bear arms. A huge majority of Americans favor stricter
gun control laws; and as long as they're excluding nuclear weapons they
might as well throw in assault weapons and Saturday Night Specials.
But ultimately, calling for a constitutional amendment banning the
ownership of nuclear weapons is moot. Individuals do not even have a guaranteed
right to keep and bear firearms, much less modern military weapons. To
overcome the Supreme Court on this issue, the gun lobby would have to promote
fundamental changes in our political structure that would surely be disimprovements.
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