Monday, December 17, 2012

The Second Amendment, the Right of Self Defense, and Gun Control

In District of Columbia v. Heller and McDonald v. Chicago the Supreme Court ruled that the Second Amendment confers at least a limited right for an individual to possess a gun.What are the implications for the constitutionality of gun control laws?

In 2008 and 2010 the Supreme Court for the first time recognized in the Second Amendment an individual right to "bear arms." The holdings of the Court were limited in scope. In each case the Court struck down laws prohibiting individuals from having handguns; and in each case the Court based its decision on the ground that people have a constitutional right to have a handgun in their homes for personal self-defense.

In my opinion and the opinion of many others the Court grossly misinterpreted the Second Amendment, whose text and history are concerned with the institution of the militia, not individual ownership of arms. Here is the text of the Second Amendment:
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.
No portion of the Constitution should be read so as to render it superfluous. The opening words of the Second Amendment were placed there for a reason. The right to "keep and bear arms" was recognized because "a well-regulated militia" is "necessary to the security of a free state." In addition, the term "bear arms" most naturally refers to military service, not individual conduct. Furthermore, the Second Amendment was part of the original Bill of Rights which was applicable against the federal government, not the states. It was placed in the Constitution not to preserve the individual right of self defense but rather so that the federal government could not abolish the state militias. Finally, the Amendment speaks of a "well regulated" militia - that is, a militia under the control of the government. That meaning is borne out by passages in Article I of the original Constitution that give Congress the power
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.
and the power
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 the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
When the same word appears multiple times in the same legal document it is safe to assume that the word has the same meaning in each context. In this case, in each instance the word "Militia" obviously refers to the armed forces under the control of the government - not to individuals wielding firearms in their own defense.

The history of the Second Amendment leaves no doubt as to its meaning. In the debates regarding this provision the members of Congress discussed the importance of preserving the institution of the Militia - an army composed of citizens - rather than a standing army. Congress also debated whether to include language in the Amendment excusing persons with "religious scruples" from military service. There is no mention in the debates of an individual right to "bear arms." The Framers intended for us as citizens to have the duty to participate in the militia. They did not intend for unregulated individuals to wield weapons at will.

In the long run the Militia, as an institution, it did not prove useful or necessary. The Framers intended for us as citizens to bear arms in the defense of our country. If we had stayed true to that vision we would not have grown into a military superpower. We also probably would not have won World War II against the German and Japanese empires. In any event, the Militia withered and died.

The Supreme Court sought to breathe life into the Second Amendment by reading it as preserving the individual right to self defense, but a more appropriate home for the right of self defense is the Ninth Amendment, which states:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The right of self defense is without question a fundamental right. It is perhaps the first law of nature. If the government were to adopt a law prohibiting people from acting in self-defense it would undoubtedly be unconstitutional. Everyone agrees on this point.

A majority of the Supreme Court ruled in Heller and McDonald that laws prohibiting the possession of handguns in the home unduly infringe upon the right of the individual to defend himself or herself. That is a point upon which reasonable people may disagree, but for now it is the law of the land.

However, those decisions leave plenty of room for the adoption of gun control legislation. So long as people are able to defend themselves in the home, legislation regulating firearms should be upheld as constitutional. Both Heller and McDonald are consistent with the following laws:

A ban on automatic and semi-automatic weapons;
Gun registration;
Gun licensing, with restrictions on those with criminal backgrounds or mental disorders;
Mandatory training;
Limits on types and amounts of ammunition;
Weapon and ammunition identification;
Strict limits on possession of firearms outside the home (despite the recent decision of the Seventh Circuit);

Finally, there is nothing in Heller or McDonald to prevent the government from strictly regulating gun manufacturing, importation, and sales, nor is there anything in the Constitution to prevent the government from buying back weapons from the people. 

All of these laws are reasonable regulations of firearms and should be upheld.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

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