On the Second Amendment as an Individual Right

Recently a lot of attention has been focused on the Second Amendment, in light of the fact that the Supreme Court will next year be considering an appeal of the DC Court of Appeals' ruling against the overarching Washington, DC gun ban. This will be the first time in about seven decades that SCOTUS has considered a Second Amendment case.

The Second Amendment reads,

"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."

Historically, there have been two schools of thought regarding the 2nd Amendment. One, the "individual rights" school, holds that the Amendment recognizes a right held by all individuals. The other, the "collective rights" school, holds that the Amendment only guarantees a "collective right" held only by specific groups of people; specifically, the National Guard is usually mentioned as an example of a "militia" as stated in the first clause.

(Of course, there is a third school of thought which doesn't care what the Constitution says. These people will be ignored for the remainder of this argument.)

What I will argue is that the collective rights interpretation is nonsense when one considers the original intent of the Founders, which was explicitly to hold the Second Amendment as a right held by all individuals.

To do this we need to look at some history.

The Constitution was written and ratified in 1787. In the next few years after the ratification, Republican (aka Anti-Federalist) leaders, notably Jefferson, insisted that there be an addendum to the Constitution listing specific rights retained by the people, and explicit limitations on the power of the national government.

What was eventually ratified in 1791 came to be known as the Bill of Rights, consisting of a preamble and ten articles. The preamble explicitly states what I said above:

"The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added[.]"

Now let us consider the first eight articles (setting aside the Second for now). Each of these seven articles, and more pointedly, every clause contained in each of these seven articles, falls into one of two categories:

(a) lists a specific right held by the people which cannot be violated by the national government

(b) states an explicit limitation on the powers of the national government.

One may examine the entire Bill of Rights here; what follows are some excerpts:

"Congress shall make no law..."

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

"...and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

"No person shall be held to answer for a capital, or otherwise infamous crime..."

"...the right of trial by jury shall be preserved..."

And so on.

In every one of these cases, jurisprudence has perennially held that "the people" as referred to in the above clauses in every case refers to individual human beings like you or I. In fact, we would live in a rather scary country if, for example, protection against cruel and unusual punishment, or the right to due process of law, were denied to individuals but guaranteed only in some nebulous, collective sense. (Though I should note that this is essentially what the Bush Administration is trying to do, although they don't even bother to couch it in Constitutional terms, preferring instead to use fear to rally support for their policies.)

What about the Ninth and Tenth Amendments, you ask?

Well, one of the chief arguments against the Bill of Rights went along the following lines... "If we sit down and list a bunch of the rights retained by individuals, what about the rights we don't enumerate? Will people just assume they don't exist and pass laws against them?" Hence the Ninth Amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The counterpart to the above argument is, of course, "If we sit down and list explicit limitations of the national government, will the lack of other things we don't explicitly forbid be taken as implicit approbation?" The response to that argument was the Tenth Amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The Ninth and Tenth Amendments are just two more cases of the above, but instead of explicitly enumerating rights held by the people or limitations of the national government's power, they recognize the existence of unenumerated rights held by the people, and preclude the existence of unenumerated powers held by the national government. (So anyone who refers to "unenumerated powers" held by the Federal government is, quite frankly, blowing hot air.)

Now, let's return to the Second Amendment. From the above discussion, it should be clear that this Amendment must be recognizing either (a) a right held by individual people ("the people" meaning individual, ordinary human beings), or (b) an explicit limitation on the powers of the Federal government, or perhaps both (a) and (b).

Let's take the "collective rights" stance and say that the Second Amendment only guarantees the right to keep and bear arms to the National Guard.

Well, what is the National Guard, you may ask. Since it is fundamentally organized at State level, one may be tempted to argue that it is the modern equivalent of the colonial Militias and thus the rightful owner of the right to keep and bear arms.

However, nothing could be further from the truth. The National Guard depends extensively on funding from the federal government and uses federally owned equipment and bases. More ominously, the National Guard can be nationalized and called to service by the President (as is happening right now with Iraq). More to the point, if the President and your State's governor issue conflicting orders, the Presidential commands supersede the gubernatorial orders (as demonstrated most graphically in 1954 when President Eisenhower ordered the National Guard to assist in desegregation of Southern schools, over the objections of Governors Wallace of Alabama and Faubus of Arkansas).

The National Guard, when push comes to shove, is fundamentally an organ of the national government. Any power delegated specifically to the National Guard is thus, at the most fundamental level, a power delegated expressly to the Federal Government.

However, this would conflict with the entire theme of the Bill of Rights. This "collective rights" interpretation with the National Guard as the "collective" entrusted with this right, cannot, then, be the interpretation supported by the Founders.

Well, what was the "militia" of colonial times? In short, an unofficial volunteer force, often with Members providing their own arms and equipment, organized at State (or Colony, or local) level, with no requisite allegiance to, nor dependence upon, the central government. In fact, it was largely the Militias (and other unofficial forces such as Ethan Allan's Green Mountain Boys) which initiated the revolt against centralized English rule in the 1770's and gave birth to the democratic Republic that is now the United States.

Who were members of these "militias?" In short, anyone who wanted to be.

That is what the militias were all about. Individual people doing what they needed to do to assure that power stayed in the hands of the people, rather than a central government; the militia did not fight for a central government, it fought for the people (who may be for or against any particular central government).

While it is hard to say exactly what the modern-day militia is, it should be clear that it is not the National Guard, or any other organized branch of the armed services (all of which bear fundamental allegiance to some central government power rather than to the individual people).

The most logical interpretation is that the militia is all of us. We are the people. We hold the power. It's up to use to secure our liberties, and ultimately it falls to us to both defend ourselves against outside aggressors and to hold our own government accountable.

This is why the Second Amendment recognizes a fundamental, natural right (some would argue the most important right) held by each and every one of us.