Tuesday, March 27, 2007

Second Amendment Rights and the Constitution

There is an excellent article in the Weekly Standard by Erin Sheley concerning Parker v. District of Columbia, the D.C. circuit case interpreting the Second Amendment in a reasonable sort of way. As the article has pointed out, judges don’t like the Second Amendment. While they are generous in interpreting constitutional clauses they like and even inventing clauses for the Constitution that you cannot find in the text, judges have been extremely stingy in enforcing the right to bear arms. Part of the reason is that the Second Amendment is not like many of the other amendments to the Constitution. It actually says, “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.” Notice anything unusual? The amendment does not purport to create a right to bear arms; instead it recognizes one and gives an additional reason for that right not being infringed.

When the Constitution was enacted, the framers already believed in what we would call natural rights and/or natural law. They believed that God had given mankind certain rights which governments were not to infringe. Among the rights recognized traditionally as flowing from natural law within reformed Christianity was the right and obligation to defend others. Defending others, of course, if it’s to be done effectively, necessitates arms and the existence of government to facilitate the coordination of that defense. Natural rights scholars, by contrast, emphasize a right to self defense. While this is, in a sense, less biblical, it has the same result in indicating that people ought to be entitled to the means necessary to defend themselves.

During the English revolutionary period, the people of England deposed and beheaded one king and deposed a second king in part because they sought to interfere with the right of people to bear arms. They made their new king and queen, William and Mary of Orange, sign a declaration of rights that essentially recognized that their predecessors in the crown had been wrong in seeking to disarm the people, especially during a time of crisis. The founders of the United States were well aware of the understanding of common law in England, that there was a right to bear arms. They knew that this was a right of the people, not a right of the state or the collective. But they also knew that in the peaceful society that they imagined, there might be a temptation to think that the right to bear arms was less necessary than it would be in a government with a greater propensity to tyranny. Perhaps this is why they gave a reason for the government’s obligation to avoid infringing the pre-existing right to bear arms. They reasoned that a well-regulated militia was necessary to the security of a free state. Today we don’t have militias in the sense that the founders meant. We do not call up all able-bodied men to fight on behalf of the state. We wouldn’t expect them to bring their own firearms even if we did. But it is still true that people have a need to defend others, and that the state cannot always be the guarantor of our safety. As a result, we still have a natural law right to bear arms. This right is explicitly recognized by the Second Amendment. In fact, I think that there is a good argument that it is also one of the sort of pre-existing rights recognized in the Ninth Amendment, the provision of the Bill of Rights that says, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The Supreme Court held some time ago that the right of travel, for example, clearly recognized in the Middle Ages and Magna Carta, is one of the rights protected by the Ninth Amendment. If the Second Amendment didn’t protect the right to bear arms, the Ninth Amendment clearly would. It is a well-known and long held common law right and if the government took away our right to defend others or ourselves by owning weapons that are reasonable for that purpose, it would be doing us a grave disservice and injustice.

Bravo to the D.C. court for getting this one right. Let’s hope that the Supreme Court of the United States eventually does likewise.


David M. Smith said...

Dean McConnell,

How do I get my wife to recognize the D.C. Court decision? : - )

Professor McConnell said...

Wives' rules for husbands are not state action, and so are not covered by the Constitution - not even through the 14th amendment. Sorry Dave.

Ben Bush Jr said...


What is the citation for the recent Supreme Court case involving the right to travel? I would be greatly interested in looking at the particulars of that case. Thanks!

Professor McConnell said...

Not new. Old. I will try to find it, but things are very busy right now. Thanks for the interest.

Vance said...

I like your reasoning and explanation of this right. When I vote, I consider at least two things:

1. What does the candidate think about the right to life? (If he/she can't get this correct, how can I trust him on less important issues?)

2. What does the candidate think about my right to defend life (mine and others)?

I have a few other tests, but the point is that the Second Amendment is number two for me, too.

Professor McConnell said...

Thanks Vance,

Whether a candidate is pro-life is certainly the number one issue for me too. It helps show how they see human beings, rights, and the role of government.

Character is also a paramount consideration.

The ability to communicate and persuade is near the top of my list too. If a candidate thinks all the right things but comes across as an idiot in press conferences or interviews it really makes it hard for him or her to get things done.

While Presidents of Senators can be prophets, we elect them to run the country, not just to be an unheeded prophetic vice.