On Gun Ownership and the Second Amendment

In the wake of the recent horrific tragedy in Orlando, the issue of gun ownership has re-emerged in the United States. Although I support gun control legislation, I’m interested here not in the details of policy (which isn’t to dismiss them as unimportant) but rather in the way we in the US tend to think about the issue. Here’s where I come down: while I do think private individuals should have legal access to gun ownership, an individual does not (meaning that, despite recent Supreme Court precedent, I don’t think the Constitution can easily be read as granting it) and should not have a constitutional right to it.

I. What’s at Stake: A Constitutional Right to Gun Ownership?

At stake here, for me, is the status of private gun ownership as a constitutional right. For the sake of argument, I’ll assume a basic Dworkian definition that, though maybe not appropriate for rights generally, seems appropriate when referring to constitutional rights: a supreme legal claim that supersedes any utilitarian calculus and possibly even sovereign will. True perhaps for rights generally, constitutional rights can only be limited by other constitutional rights.

This line of reasoning is critical to my argument due to the steep demand of a constitutional right. My claim, then, that individuals should not have a constitutional right to gun ownership, means something rather specific. It does not mean that I think individuals should not have legal access to gun ownership. It means I don’t think they should have a constitutional right to it. There are two aspects of this view, a constitutional one (whether I think the Constitution does provide this) and an ethical one (whether I think the Constitution should provide this).

II. Is Individual Gun Ownership a Constitutional Right?

In contrast to standing SCOTUS precedent, I don’t think the United States Constitution grants or protects an individual right to gun ownership. While I don’t endorse a strict constructionist view of the Constitution, history isn’t irrelevant in its interpretation and an immanent critique of an originalist reading is possible.

The Second Amendment seems rather straight forward. It was written for, as it says, the purpose of a militia:

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.

Despite Justice Scalia’s rather eccentric reasoning (which, to note, does allow for some gun control measures) in the most recent and consequential SCOTUS decision on the matter, the initial clause is essential to the amendment. This becomes especially clear when considering James Madison’s initial proposal for the amendment:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

In 1789, the House of Representatives proposed 17 amendments, the Fifth of which was only slightly different from Madison’s:

A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

It’s well documented that the Founders were vehemently opposed to a standing army. The only recourse for national security, then, was the cooperation of state militias. The Second Amendment was written to ensure such militias would be appropriately equipped. “Bearing arms” was quite clearly a military reference, as Garry Wills has noted; nobody was “religiously scrupulous” of owning a gun – not even Quakers, many of whom were hunters. They were opposed to military service.

It seems reasonable that there might have been a Constitutional amendment to protect one’s right to own guns for personal protection. And I would grant it may have been presumed in the late 18th century that individuals should be able to own guns. But it is something else to claim that this is what the Second Amendment is referring to, which I think is rather clearly not the case.

Still, some Second Amendment proponents argue along more ideological lines – that the amendment was written so that citizens could be armed for the purpose of insurrection, if the need should arise. Now, it doesn’t seem at all reasonable that the most powerful and technologically adept military in the history of the world could be seriously threatened by cabinets of pistols and rifles. But that practical concern is beside the ideological one. It doesn’t seem to make much sense to claim that the Constitution protects and ensures the right to gun ownership for the purpose of overthrowing the very government it legitimizes and protects. Garry Wills has argued a similar point, that it doesn’t make much sense for “militias [to] have a constitutional right to levy war against the United States, which is treason by constitutional definition (Article III, Section 3, Clause 1).”

In fact, in advocating the arming of a militia, the Second Amendment claims exactly the opposite: that militias should be armed for the protection of the government the Constitution establishes. That the Second Amendment arms militias for the protection of the country and its government seems beyond dispute, whatever else it can be read to do. Therefore it can’t be that the Second Amendment arms militias for the protection of the government it establishes while at the same time arming individuals for the purpose of overthrowing that very government.*

Lastly, as Michael Waldman has detailed, the history of judicial rulings – until 2008’s Heller decision – seems to affirm as well that the Second Amendment was not intended to protect an individual’s right to privately own a gun.

III. Should Individual Gun Ownership Be a Constitutional Right?

I also have an ethical concern about widespread and largely unregulated individual gun ownership. Guns possess a troubling combination of lethal power and ease of use. They are quite specifically designed to maim or kill with precision and proficiency (I really struggle with denials of this important point). Any such device should therefore be heavily regulated for obvious reasons. Given the fact that so very few people hunt for their own food, I see no ethical reason for gun ownership to be a constitutional right.

Some might respond that guns are needed for individual or private self-defense, which, even though it is not explicitly mentioned in the Constitution, is widely understood to be a fundamental right. I affirm that individuals have the right to defend themselves, and I affirm that guns can be useful for this end. But it doesn’t necessarily follow that, on account of affirming a right to self-defense, people should therefore have access to guns. That individuals have the right to self-defense doesn’t mean they have the right to any and all equipment that might be useful for this purpose. In no way does reducing access to guns undermine one’s right or ability to defend oneself. It merely limits what tools might be available for this end.

I anticipate an objection to the effect that some malicious individuals already have guns, so it’s too late. “I” should have access to equally potent instruments if I am effectively to defend myself. There’s no question that this complicates the matter, but, from my view, it only contributes to the need for aggressive and urgent gun control policies.

I willingly acknowledge that drastically fewer privately owned guns wouldn’t make people less prone to violence. However, the easy availability of firearms certainly impacts the scale and lethality of any such potential violence.

IV. Conclusion

I affirm that some individuals should be able to legally own and acquire certain types of guns. I stop short of thinking this should be a constitutional right. Individual gun ownership is a privilege, much like owning just about any other commodity, which means access to gun ownership can be regulated, limited, and even denied for reasons of public interest.

Given my argument against a constitutional right to individual gun ownership, the burden of such ownership ought to be entirely on the individual – to prove he or she is properly trained, can be trusted, etc. – rather than on the state’s provision of access. An individual therefore ought not to have, as recourse against any legislation limiting access, a legitimate, superseding claim to gun ownership.

___________________

* An argument could be made that insurrection might be necessary to ensure “the security of” one’s own country as “a free State” – that is, against the unjustified encroachment of one’s own government. On such a reading, militias should be equipped to defend the principles undergirding the US Constitution rather than the practice or instantiation of an actual government. There are two significant problems with this view. First, as the historical development of its text clearly reveals, the amendment is about military service and not vigiliantism or insurrection. Second, the text of the Second Amendment references “the security of a free State” – an actually existing government – and not the security of free individuals or right principles. I’m not at all pursuaded that the term “free” in this context refers to the character of the state’s governance. I see no evidence for such a reading. The actual wording of the amendment resists any straight forward individualist or revolutionary reading.

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