Opinion: Right to bear arms isn’t unlimited

September 12, 2013


By Joseph J. Ellis

Los Angeles Times

There is an opinion abroad in the land that the right to bear arms is unlimited, an absolute right, like the right to vote or the right to a fair trial.

This heartfelt conviction has surfaced lately in state legislation that attempts to nullify federal gun regulations. For the nullifiers, and many others, the broadest possible right to bear arms is purportedly enshrined in the Second Amendment and recognized in the Supreme Court case Heller vs. District of Columbia.

And yet, no matter how prevalent or fervently held, the opinion that the Bill of Rights supports and the high court acknowledges an absolute right to gun ownership is just plain wrong.

The language of the Second Amendment is quite clear: “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.” As the minority in the Heller decision argued, and more than a century of judicial precedent at the federal level established, the right to bear arms was not an inherent right of citizenship but rather a right that derived from service in the militia.

James Madison’s thinking

The historical context in which these words were crafted clarifies what was in James Madison’s mind when he wrote them. In 1787-88, seven of the states that ratified the proposed Constitution did so on the condition that Congress give consideration to adding several amendments if and when it went into effect. These states proposed 124 amendments, none of which mentioned the right to bear arms but several of which mentioned the fear of a standing army.

When Madison sat down to write what became the Bill of Rights in the summer of 1789, those 124 proposed amendments served as the basis for his deliberations. He distilled from them an essence of 12 amendments, subsequently reduced by the states to 10. The 2nd Amendment represented Madison’s attempt to respond to the fears of a standing army by assuring that national defense would reside in the states and in militias, not at the federal level in a professional army. The right to bear arms derived from the need to assure that state militia could perform its essential mission.

All this was what constitutional scholars call “settled law” until Heller, in which the high court ruled that the right to bear arms, despite the language of the Second Amendment and the historical context of its creation, existed independent of service in the militia. Justice Antonin Scalia’s majority opinion is a tour de force of legalistic legerdemain, a lengthy journey through English common law, colonial charters, state constitutions and obscure 19th century court cases. Given Scalia’s judicial philosophy as an “originalist” — meaning he believes his opinions should be guided by the original intent of the framers — his failure to assess Madison’s motives in drafting the Second Amendment is strange, much like a devout Christian explaining his faith without mentioning Jesus.

Scalia’s caveats

But even Scalia, fully aware of the legal precedents he was overturning, saw fit to insert the following caveats near the end of his opinion:

“Like most rights, the right secured by the Second Amendment is not unlimited. … Nothing in our opinion should be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

These caveats create a crack through which significant gun control legislation might flow. Indeed, expanded background checks and limits on automatic weapons, the key provisions in the post-Sandy Hook gun legislation debated (and defeated) by Congress earlier this year, fit comfortably within this space.

Take issue back to people

But gun control advocates need to be realistic. The Heller decision, no matter how misguided, is itself “settled law,” and the current composition of the Supreme Court will defeat any challenge to its sweeping, if limited, mandate. In addition, Congress is demonstrably hogtied by the National Rifle Assn., and even though many states (Colorado, Connecticut and New York among them) have tightened gun ownership laws since the massacres in Newtown, Aurora and Tucson, another half a dozen are trying the nullification gambit.

Given all this, the only alternative is to go back to “the people” themselves, where there remains good reason to believe a clear majority wants sensible reform at odds with the agenda of the NRA and the nullifiers. Remember: As 2013 began, an astonishing 89 percent of voters, including 75 percent of NRA members, were in favor of expanded background checks, and sizable majorities favored a ban on sales of semiautomatic weapons. Months later, polls still find most Americans are in favor of checks, “assault rifle” bans and restrictions on who is allowed to purchase guns.

Legal core for gun rights

The terms of a national discussion would no doubt include the gun violence tragedies we’ve faced, but it should also focus on the legal core of the gun rights issue: the Second Amendment and the Heller decision. These two tools, so often used to fight gun control, can and should be used to affect reasonable reform.

The intent of the founders needs to be heard and understood. The men who hammered out the Constitution, argued for its ratification and underlined our liberties with the Bill of Rights, would urge us to think about the issue this way: How do we balance the right to bear arms against the collective security of the American people?

Framed in this fashion, we can all come together as fellow citizens to discuss in a sensible rather than strident tone where the line needs to be drawn between our rights and our responsibilities.

All that’s required is that we channel our inner James Madisons, and even our inner Scalias. There is no unlimited right to bear arms — on that these two men agree, and so should we.

— Joseph J. Ellis is the author of “Founding Brothers” and, most recently, “Revolutionary Summer.” He wrote this for the Los Angeles Times.


lwctown 6 months, 4 weeks ago

The founders used the word "people" in the 2nd amendment to give the right to the people not the state.

Justice Antonin Scalia, writing for the majority in Heller, stated:

Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.

Garth Atchison 7 months ago

It is easier to get a gun than to vote. We have no problem limiting the right to vote, but guns are off limits. So some rights are fair game and others not. Can someone explain to me the hierarchy of the bill of rights so that I can determine which one is more important than all the others?


In_God_we_trust 7 months ago

The Preamble to the Bill of Rights settles the argument of those that would try to pick apart the 2nd amendment. It clearly states that the Bill of Rights are listed FREEDOMS and RESTRICTIONS on the Federal government, including the Supreme Court and Congress, and the President. The 2nd amendment says "shall not be infringed", the 1st amendment says "shall make no law". The liberal argument is false and over, concerning the 2nd amendment and any of the Bill of Rights. That is why there is an amendment change process, not just simple legislation.


Norm Jennings 7 months ago

I'm not opposed to everything stated in this opinion. However, I do think the focus on the argument is somewhat a tangent to the primary concern, how to reduce the threat of violence without unnecessarily restricting freedoms (whether based on a particular persons interpretation of the bill or rights or the opposite).

I know this. The marketers of firearms and ammunition have never blasted through their previous sales targets like they did since the President began the discussion of additional restrictions. My friends who have a business that includes the sales of these types of wares have been unable to even stock their inventories at usual levels since the demand has increased so dramatically.

The most painfully slow and ineffectual measures are what democracy often requires in the modification of long-perceived freedoms. In fact, "quick fixes" often add volatility to an already inflammatory circumstance. The bottom line as fuzzy and gray, as it might be, is that young men do not feel equipped and/or empowered to meet the societal changes in the preparation for, and meeting the definition of sucess in our times. Any mental vulnerability in a man is still considered a weakness rather than a human limitation with accepted and product ways to seek support without eliciting ridicule and/or judgment. The product is the slaugher that we have all grieved.

No gun law will fix this. Without a gun the same person will turn to explosives, or poison, or another device of shocking and unnecessary death. I know that I'll be judged as a "gun nut," or "nullifier," or "NRA stooge" for acknowledging this truth. All the same, I don't believe in round pegs in square holes, nor in demonizing my neighbor for not recognizing the same. Both sides have valid concerns unmet by their opposition, unfortunately the more "intellectual" on both sides simply use the ivory tower to ridicule their opposition rather than to recognize that both sides have holes in their arguments.

This is why we all feel both grief and guilt as each of these events occur, because most of us are guilty in petty argument rather than embracing the need to move the discussion toward a less violent tomorrow.

For the part that the writer attempted to discuss without being "strident" I applaud the writer.
For the portion of mindlessly throwing around labels like "nullifier" and making broad accusations of the NRA and its membership, the writer will have to share part of the feeling of guilt and grief from the next tragedy with the rest of us.


snakeskin_cowboy 7 months, 1 week ago

What about the words "shall not be infringed" does Ellis not understand?


Ray Parker 7 months, 1 week ago

The Second Amendment means that Congress cannot infringe our right to buy, own, and carry arms so much that our citizens cannot pose a credible threat of resistance to a malevolent, overbearing federal government such a we see arising today.


Minuteman by parkay


coebam 7 months, 1 week ago

It’s not just the extreme right, and the likes of the NRA whipping up gun ban paranoia. According to Mrs. Feinstein, and her 2013 proposal, it appears to me as if she would like to confiscate a significant number of firearms from law abiding citizens. There would not be much left in my safe if I had to surrender guns that are considered an assault weapon according to her proposal. So that said Kathy, I think some people may be justified in their gun ban paranoia. Both right and left can be overly ideological in their political positions. This bill is over the top and I could not see any way it could have passed. However, some obviously thought it had a chance and acted in a manor they thought best.


coebam 7 months, 1 week ago

"If anyone understands the social aspects of violence, it would be us leftys, right? LOL"

What does that even mean? I am confused???


coebam 7 months, 1 week ago

@ Kathy & Tomato - you two completely missed my point. It's not about banning anything. I am not paranoid. I am not Scared Barry is coming for my guns. You can legislate all kinds of laws into infinity. You can put limits on mag capacity. You can say if this kind of gun has that, it's illegal. It does nothing to stop violence. That is the essence of my point I am trying to make. PEOPLE are the problem. Violent people that don't care about anyone else. It's not guns or any other weapon for that matter that is the problem. Again it is PEOPLE! Geez - read and think!


coebam 7 months, 1 week ago

It is the same worn out arguement. The left sadly believe if guns are removed from law abiding citizens all gun violence be stopped immediatly in the country. However, most of the the anti-gun establishment doesn't want to talk about who, rather than what, is actually doing the majority of the killing and violent crime. You see, it does not matter what magazine capacity, or what furniture is on a rifle, or what caliber the gun happens to be. All that is irrelavent, because people do the crimes, not the guns. A GUN IS A TOOL. The left like to blame the NRA and the evil firearms manufacturers, but that really is not fair is it? They like to blame the CCL guys for making cities that were once peaceful, and violence never ever happened, into the old west were shootouts are as commen as a kids soccer game. REALITY is it's the criminals, the badguys, the drug dealers, the gang bangers, the felons.

Because fixing the REAL root causes of violence in this country is too hard to do. Taking away a law abiding citizens guns is far easier than changing an entire culture. A culture where human life is worth no more than what ever is in a purse or cash drawer of a quik trip. A culture where others property is "anyone's" property, all you have to do is take it. A culture where the punishment does not necessarily deter a crime.

You see - people are the problem. Not guns, knives, bats, chipper shredders, take your weapon of choice. It's PEOPLE, not the tool used in a violent crime. Until people have a higher respect for one another this will not stop. I don't know how I can explain this any more clearly guys. Bad people like to hurt other people. Some people choose to be able to defend themselves if a dangerous situation arises. If you don't like guns, don't own one. But the thought process of "if all guns are banned......." is just plain unreasonable and honestly silly. It's been said a thousand times, but no one seems to grasp it. "If guns are outlawed, only outlaws will have guns".


nwtransplant 7 months, 1 week ago

I am not contending that I have the right to own cruse missile or a fighter jet. I just want to be able to adequately protect myself and my family.


nwtransplant 7 months, 1 week ago

Forget about what it says about a militia. It also says that the right of the people to keep and bear Arms, shall not be infringed. People and a militia are not the same thing. We can argue till the end of time, and we will just have to agree to disagree. The group with the most amount of money and clout will get their way. The fact is that the police cannot protect you (stop anybody who wants to harm you), all they can do is arrest the perpetrator. The police did not stop any of these nut jobs from killing people, so we had better be prepared. I will not carry a gun on my person, because I'm in a wheelchair and it just would not work. Anybody who breaks into my home will be sorry they ever had that thought. I will probably be sorry if I ever have to shoot somebody, because I could never know 100% if they had intended to kill me. Being sorry is definitely better than dead.


yourworstnightmare 7 months, 1 week ago

I am always amused by these gun rights absolutists attempting to support their personal opinions about gun regulation and the Constitution by trying to redefine words that have well-understood and precise meanings.

"well regulated" doesn't mean that at all, but in fact the opposite, unregulated. They usually just ignore altogether the word "militia".

For example, from Satirical: ""A well regulated militia..." is precatory language and in typical statuory interpretation cannot and does not impose any enforceable oblication on the right granted (the right to keep and bare arms)."

Huh? Great fun.


Satirical 7 months, 1 week ago

If background check prior to exercising a constitutional right is completely reasonable, then it should apply to voting as well as owning a gun.


Satirical 7 months, 1 week ago

Art. I, Sec. 8 of the Constitution, in granting Congress the right to provide for the organizing, arming and disciplining of the Militia, reserves to the States “the Appointment of the Officers and the Authority of training the Militia according to the discipline prescribed by Congress.”

If Congress really wanted to reserve the right to keep and bare arms to the militia, it is likely to have put it there, rather than in the Bill of Rights, which deals with the rights of people.


Satirical 7 months, 1 week ago

If we are going to have the Constitutional argument, then it should be noted the the first clause, "A well regulated militia..." is precatory language and in typical statuory interpretation cannot and does not impose any enforceable oblication on the right granted (the right to keep and bare arms).

Furthermore, the 2nd Amendment doesn't say the right of the MILITIA to keep and bear arms shall not be infringed. It says the right of the PEOPLE to keep and bear arms...

Finally, is it possible that the "people" being referred to in the 2nd Amendment is really code for militia? Unlikley since the term "people" in the rest of the Constitition and Bill of Rights refers to individuals.


fmrl 7 months, 1 week ago

Can you imagine the degree of tyranny we would be under now if it weren't for the 2nd Amendment? Every day innocent people are brutally murdered by local law enforcement. Add to that the alphabet soup of Federal goon squads who think they have a license to kill. I personally thank all those who keep weapons and are ready to use them responsibly.


yourworstnightmare 7 months, 1 week ago

LibertyOne writes: "A constitutional right is a constitutional right. The constitution is not a buffet."

And then.

"The militia is "well regulated". The next clause puts it plainly for citizens: "the right of the people to keep and bear arms shall not be infringed""

Hmmm. Sounds like a buffet menu to me....


yourworstnightmare 7 months, 1 week ago

Many gun rights absolutists conflate what is in the Constitution with their own personal feelings on the matter.

We are a nation of laws based on the Constitution, not a nation based on the personal opinions of absolutists.

I am skeptical of Constitutional originalists, but the consistent originalist interpretation in this case supports reasonable gun regulation.

Many originalists disagree, confirming my suspicion that the originalist argument is used to support personal opinions about the Constitution and not what is actually there or intended.


kansas_cynic 7 months, 1 week ago

Ellis is far better than any Fox commentator or NRA goon and makes a lot more sense with his arguments.


Satirical 7 months, 1 week ago

Ellis undercuts his own argument. If he really wanted to argue for reasonable limitiations to the 2nd Amendment he shouldn't have started by claiming THE PEOPLE don't really have a right to keep and bear arms. He poisoned the well by starting his argument in way that makes him appear like an extremist from which there is no possibility of determining reasonable limitations. It is already clear that in his mind all restrictions are reasonable considering there is no right in the first place.

Reasonable people can disagree on the intrepretation of the 2nd Amendment, but if I wanted to make an argument for a reasonable solution to the same-sex marriage debate, I wouldn't start by trying to convince others that homosexuality is a sin. That would only make sense if I was trying to argue against same-sex marriage entirely.

Is Ellis only used to making arguments to people that think like him?


jayhawklawrence 7 months, 1 week ago

A lot of Democratic political resources are being invested in "gun control" efforts these days. Perhaps not enough in creating jobs and improving the economy.

We have seen a lot of Republican resources focused on Benghazi and blocking anything Obama does.

If the effort was only about establishing a gun registration database or about eliminating 30 round or higher magazines, then why the attack on the 2nd Amendment? Think....

I am always interested in how public opinion is influenced by propaganda because of the sophistication of politicians, their strategists, and the control and power of the media. They would not be spending mega-billions on elections every year if these techniques did not work.

When Bill Clinton was running for election, as the story goes, a sign was hung on the door that said,"IT's THE ECONOMY STUPID".

Perhaps what these people need to do is print more of these signs. Obviously, they are avoiding the most important issue in America today and that can only mean they like the status quo. The rich are getting very rich these days and the rest of us don't seem to matter much.


kansas45 7 months, 1 week ago

I wonder what about Judicial precedent prior to the last century? Mr Ellis does not mention that. A well regulated milita is made up of the people and they were expected to be armed. Yes, a standing army was feared (from past experience), but more feared was an unarmed populace that could not defend themselves against a tyrant. Mr Ellis expresses his opinion as he is allowed to do under the same judicial interpretation of the Bill of Rights that he claims is wrong regarding the 2nd Ammendment. The same that gives the "right" for the people to bear arms. No one is talking unlimited freedom and this is another lie. Certain restrictions apply to all of our freedoms but it must be understood that those restrictions must be themselves restricted or the freedoms are slowly lost. Background checks are necessary, but not all states or agencies report the to the FBI the necessary information to do such a thing. So why expand that when it currently does not function properly. Nor are offenders prosecuted when they do falsely apply to purchase a firearm. I guess it is part of the selective enforcement of federal laws, similar to the marijuana laws, IRS abuse and others. The legislation that he refers to concerning "automatic" weapons is also lie, a made up reference to raise the level of "OMG" among those uninformed. That alone loses credibility in speaking on firearms issue. "Automatic" weapons are currently heavily controlled and regulated. The issue was with "semi-automatic" so called military style firearms. As to the 89% of voters and 75% of NRA members remark.. I cannot say anything about the voters, however the 75% of NRA members is a lie. It is based on a survey where people claimed to be members and not an actual NRA membership survey. Again, Mr Ellis gives an opinion and I believe that he should campaign to become a federal judge as he feels he knows more about the law then those already there. Until that time he only expresses his opinion, which I disagree with but will defend to the death his right to do so


Liberty275 7 months, 1 week ago

You can regulate gun ownership the same amount you can regulate speech.

Tell your democrat leaders to keep pushing gun regulations. We've seen the result of that in Colorado.


Abdu Omar 7 months, 1 week ago

Uhh, Stevie, did you read the article?


stevieboy 7 months, 1 week ago

LOL...Left wing liberals are so funny...blame the gun instead of the criminal using it..


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