On Gun Ownership and the Second Amendment

In the wake of the recent unspeakable tragedy in Orlando, the issue of guns has re-emerged in the United States. I must say, I’m not persuaded that much of the proposed gun control legislation, were it to pass, would be especially effective in preventing gun violence in the future. Some of it might be helpful, but it seems to me the issue is deeper than current gun control proposals and more about the way we think of gun ownership. So, here’s where I come down: I don’t think an individual has a right to private gun ownership.

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

At stake here, for me, is the status of individual gun ownership as a right. A right is a supreme legal claim that supersedes any utilitarian calculus. That is, a right is a legal claim to a good or action that cannot be overridden by collective concern or sovereign will. Rights, therefore, can only be justifiably limited by other rights. Constitutional rights enjoy prominence among all others.

This line of reasoning is critical to my argument because of the steep burden placed on any limitation of a right. My claim, then, that individuals do not have a 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 have a right to it. There are two aspects of this view, a Constitutional one and an ethical one.

II. Is Individual Gun Ownership a Right?

In contrast to standing precedent, I don’t think the United States Constitution grants or protects an individual right to gun ownership. The Second Amendment seems rather straight forward to me. 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 in the most recent and consequential SCOTUS decision on the matter, the initial clause is central to the amendment. This is 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 a slightly different from Madison’s original:

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 that 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 indeed 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 simply doesn’t make sense to claim the Constitution protects the right to gun ownership for the purpose of overthrowing the very government it legitimizes and protects. Garry Wills has argued his 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).

It can’t be that the Constitution endorses or equips citizens for treasonous acts. The same document can’t legitimize a government while at the same time promoting insurrection.

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 Right?

I 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 literally designed to maim or kill with precision and proficiency. 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 right.

Some might respond that guns are needed for individual self-defense. I affirm that individuals have the right to defend themselves, and I affirm that guns can be useful for this end. But the second point doesn’t necessarily follow the first. That an individual has the right to self-defense doesn’t mean he has 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 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 right. Individual gun ownership is a privilege, much like owning a car, which means access to gun ownership can be regulated, limited, and even denied for reasons of public interest or concern.

Given my argument against a 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 cannot, as recourse against any legislation limiting access, claim a superseding or pre-emptive right. Gun ownership is a privilege, not a right, which can and should be limited legitimately for reasons of public safety.

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