The Myth of Second Amendment Individual Gun Rights

“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.”

When I was a kid, I remember being told that the second amendment stood for “the right to bear arms.” I think this is what most of us were told. I accepted that little snippet as representative of the whole amendment without question. I saw my daddy’s gun rack as made possible by that text. Later I saw a little more, which read, the right “to keep and bear arms shall not be infringed.” Seems straight forward, doesn’t it? And so, when I saw NRA folks saying that gun regulations and assault weapon bans violate the second amendment, there was a time when I was very sympathetic to them. But now I’m in law school, and I’ve come to learn that the little snippet we are taught as children and that is promoted by the NRA is taken hopelessly out of context.

To understand why, we need to go back in time a little bit. During the constitutional convention, the anti-federalists were extremely concerned about federal power infringing upon state rights. At that time in our history, people identified more as the resident of a particular state than as “Americans.” In particular, anti-federalists were worried about the federal government disarming the state militias, which were essential in winning the Revolutionary War. They were worried that the individual states would not have a way to protect themselves, especially if the federal government got out of control. At that time EVERYBODY was in the militia, or, rather, every able-bodied man. People kept their militia guns at home – this way there wouldn’t be one gun store that the enemy could capture. The anti-federalists wanted this system of state security to be protected, and so they pushed for the second amendment’s passage.

This is all well and good, but what is the deal with the words “the people”? “The right of the people to keep and bear arms.” If the second amendment was only to be about state militias, why didn’t they just say, “The right of their people to keep and bear arms”? An unbelievable amount of ink has been spilled and trees killed on what essentially boils down to why the word “the” as opposed to “their” is used. I think the answer is just because, at that time, everybody was in the militia, and so the militia was seen as a sort of manifestation of the people. This is the way it was for a long time, and apparently the way the drafters thought it would stay. The concern of the anti-federalists was thus not that individual people had gun rights per se, but that people who were in the state militias had the right to be armed in order to make effective that militia.

Clearly, not everybody is in the militia today (the militia system has evolved into the State National Guard), so the word “their” becomes more appropriate for modern understanding. With “State National Guard” in place of “militia”, the amendment reads: “A well regulated State National Guard, being necessary to the security of a free state, the right of their people to keep and bear arms, shall not be infringed.” This interpretation makes complete sense considering the concerns of the anti-federalists.

But why should you believe me? There are plenty of court decisions addressing the question of whether the second amendment guarantees individual gun rights, or just protects the states right to arm their forces.

There is only 1 Supreme Court case (US v Miller, 1939) that significantly interprets the second amendment, and to a certain extent it dodges the central question. Nonetheless, the Court in that case upholds the gun restriction statute that was challenged. The law put a $200 tax even on guns that cost about $10, which effectively banned them. This certainly would seem to qualify as “infringement” under the second amendment. The court emphasized that the second amendment should be interpreted in a state militia context, saying, “With obvious purpose to assure the continuation and render possible the effectiveness of such forces (militias) the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” More recently, there have been petitions to the Supreme Court to strike down the Assault Weapons Ban as unconstitutional. The Court has not seen fit to hear any of these cases.

There are also a number of federal circuit court decisions (federal courts right under the Supreme Court) interpreting the amendment in rich detail. There are 13 circuits in total, most of which have directly analyzed the second amendment question. Of those, only one has backed up the individual rights interpretation (not surprisingly, the 5th circuit that includes Texas. US v Emerson, 2002). Every single other decision has consistently held that the second amendment is only for protecting militias (search online for the 9th, 6th, 4th, 7th, 3rd, and 8th circuits’ decisions).

I think one final reason not to interpret the second amendment as guaranteeing individual gun rights is social in nature. With the types of weapons technology we have today, a ban on any “infringement” of firearm ownership would be an absolute nightmare. Guns already cost society $100 billion annually, with about 100,000 people being killed or injured by guns each year. In addition, the strict interpretation the NRA advocates would seem to legalize grenade launchers, bazookas, automatic weapons and other things that shouldn’t be available in a civilized society.

So the next time a gun-nut tells you that they love the second amendment, tell them that you do too, but probably not for the same reason as them. They’ve probably never heard of the dominant legal interpretation of the second amendment. It’s time to burst their bubble.

Leave a Comment

Your email address will not be published. Required fields are marked *