Who has right to bear arms?
To whom, and for what purpose, does the Second Amendment to the U.S. Constitution grant the right to “keep and bear arms”? Examination of the origin and precedents of the language of the Second Amendment may shed light on its meaning.
As the chief architect of the Bill of Rights, James Madison “drew heavily on the amendments suggested by his state’s ratifying convention and those listed in the Virginia Declaration of Right.” (Richard Labunski, “James Madison and the Struggle for the Bill of Rights,” p. 199) Article 13 of the Declaration, approved in June 1776, reads: “That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under the strict subordination to, and be governed by, the civil power.”
In June 1788, the Virginia Ratifying Convention approved the proposed U.S. Constitution “with amendments recommended but not required.” (Labunski, p. 113) The relevant part of the 17th recommended amendment reads: “That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained in arms is the proper; natural and safe defense of a free state. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided.” New York’s Ratification Document dealing with arms rights includes nearly identical language.
Each of the documents cited above includes a warning about standing armies and emphasizes the role and importance of a well-regulated militia. Identical or similar language appears in the constitutions (1776 to 1780) of North Carolina, Pennsylvania, Vermont, Delaware and Massachusetts.
The fourth of nine amendments that James Madison proposed to the First Congress in June 1789 includes this paragraph: “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” (Labunski, p. 270).
The version ultimately proposed by Congress and later ratified by the States to become the Second Amendment to the U.S. Constitution reads: “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” (Labunski, p. 279).
Proponents of the individual-rights interpretation emphasize the second half of the Amendment and often disregard the first half entirely. But both are parts of the same sentence and they are logically and grammatically related. The first half functions as a subordinate clause, justifying the right stated in the second half, which functions as the main clause. Inserting the subordinating conjunction, “because,” at the beginning of the Amendment and replacing “being” with “is” clearly expresses its meaning.
Individual-rights proponents also claim that the term, “the people” means each person. That applies only in the sense that each person in a militia may have a firearm. But a militia operates as a unit with a collective purpose: defense of the state. Thus, “the people” has a collective meaning, just as it does in the Preamble to the Constitution (“We the people”) and in the First, Ninth, and Tenth Amendments.
What do the courts say about the Second Amendment? In U.S. v. Miller, 1939, the U.S. Supreme Court ruled “we cannot say that the Second Amendment guarantees the right to keep such an instrument [a shotgun].” (Henigan, Dennis et al. “Guns and the Constitution: The Myth of Second Amendment Protection for Firearms in America,” viii).
The meaning of the Amendment has been addressed by federal and state courts more than 30 times since 1939. With one exception (currently under appeal), these courts decided that “the Second Amendment refers to the right to keep and bear arms only in connection with a state militia”(www.bradycampaign.org/facts/issues).
In contrast to the Second Amendment, the constitution of many states addresses arms rights unrelated to a militia. Bearing of arms is granted to individual citizens, or to every person, or to each citizen, although the right is often qualified or subject to regulation.
It is difficult to understand why so many supposedly knowledgeable persons believe that the amendment grants each individual the right to bear arms. Two examples appeared recently in the Lawrence Journal-World: Sen. John McCain (April 19, 7A) and Peter Brown (April 24, 7B).