Right to bear arms

SIGNIFICANCE: The right to bear arms is a controversial subject that raises questions about exactly what kind of constitutional protection is guaranteed to citizens by the Second Amendment to the US Constitution.

The right to bear arms is generally understood as the right of citizens to possess guns for their personal and community defense, for hunting and recreational target shooting, and for other lawful purposes. Many supporters of this right consider it to be a fundamental human right that is recognized by good governments. Critics consider recognition of such a right to be outdated.

Historical Roots

Connections between the right to bear arms and basic human rights have deep roots in Western philosophical tradition. In Politics, the fourth century BCE Greek philosopher Aristotle argued that possession of arms by citizens was necessary for the preservation of their political rights. The laws of the later Roman Republic and Roman Empire did not explicitly recognize the right of citizens to bear arms, but they did acknowledge the right of citizens to defend themselves against common criminals and abusive soldiers. Likewise, the canon law, or church law, of medieval Europe affirmed a natural right of self-defense. The seminal work of canon law was the Decretum of the eleventh century Italian monk Gratian of Bologna, which argued that natural law is common to all nations because it exists everywhere through natural instinct. Gratian’s examples of natural law included repelling violence by force, which he said could never be regarded as unjust because it is “held to be natural and equitable.”

During the eleventh and twelfth centuries, many European towns began to assert their independence from monarchs and bishops who exercised temporal power. The towns bore responsibility for their own defense, which meant that their denizens had the right to bear arms and the duty to serve in their militias. The city-states of Italy became especially strong believers in militia ideology: that a civic virtue people would join a militia to defend themselves, rather than relying on foreign mercenaries for protection.

In medieval England bearing arms was considered both a right and a civic duty. Many English political philosophers attributed England’s liberty to the fact that the nation was defended by militias, instead of standing armies. During the seventeenth century, England’s Stuart kings made repeated attempts to assert royal control over the militias of local governments so they could build up standing armies. King James II and King Charles II both persuaded Parliament to enact gun laws that prohibited gun ownership by everyone except the wealthy and required gunsmiths to provide the government with lists of people who bought guns. The Stuart Dynasty was overthrown in 1688. The following year, Parliament enacted the English Bill of Rights, which declared “That the Subjects which are Protestants may have Arms for their Defence suitable to the Conditions, and as allowed by Law.” English laws retained many strict prohibitions against hunting by commoners. Common people were allowed to have guns for other uses but not to possess items suitable only for hunting, such as nets and snares.

American Constitutional Law

All but a handful of American states have written the right to bear arms in their state constitutions. In twenty states, that right has been strengthened by voters. Apart from Massachusetts, the constitutional provisions in every state are currently interpreted as guaranteeing individuals the right to arms. Although many gun control laws have been declared unconstitutional in the states, others have been upheld by courts ruling that they do not infringe constitutional rights.

A particularly controversial aspect of the right to bear arms is the meaning intended in the Second Amendment to the US Constitution, which was adopted in 1791, along with the other nine amendments in the Bill of Rights. The wording of the amendment is brief and deceptively simple:

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.

A much-debated question is exactly what the framers of the amendment meant by “the people.” Were they thinking of collective communities, which should be allowed to arm their own militias? or, were they thinking of individual citizens? Through the nineteenth century, the Second Amendment was almost universally interpreted as guaranteeing an individual right. During the twentieth century, however, many courts and commentators argued that the amendment’s allusion to “Militia” meant that the amendment guaranteed only the collective right of states to have militias, not an individual right.

In 1968, the US Congress enacted the Gun Control Act, the first federal law placing any limits on the possession of ordinary guns by members of the public. Many Second Amendment challenges to the Gun Control Act were raised, but none of them has succeeded on Second Amendment grounds. Further US gun control legislation took effect after the passage of the Brady Handgun Violence Prevention Act in 1993. The act supported arguments that while overall gun ownership may be a right, the government has the power to limit access to certain types of arms (such as handguns) to certain types of people (such as felons).

In 2001, the Fifth US Circuit Court of Appeals ruled in, United States v. Emerson, that the Second Amendment guaranteed an individual right, and that the amendment was not infringed by a law that prohibited gun possession by persons subject to domestic violence restraining orders. Two years later, however, the Ninth U.S. Circuit Court of Appeals ruled, in Silveira v. Lockyer (2003), that there is no individual right to possess a gun. Other federal courts have made rulings similar to that in Silveira v. Lockyer. Issues related to the right to bear arms, including gun-free zones established in response to increased attention to school shootings and the debate over concealed weapons statutes, also continued to cause many disputes.

Advocates on each side of the gun control debate assert that the US Supreme Court supports their side’s particular position. However, the Supreme Court long avoided addressing gun control. Many different Supreme Court cases cited the Second Amendment, but the court was hesitant to create any precedent beyond 1939's United States v. Miller, which challenged the National Firearms Act of 1934. Moreover, the Court’s language in that case was sufficiently elliptical to allow both sides in the debate to claim support from the ruling. However, in 2008 the court heard the case District of Columbia v. Heller, in which it found that parts of the District of Columbia's gun regulation legislation were unconstitutional. While the case established that the Second Amendment applied to handguns and areas under federal jurisdiction, it did not fully clarify its application to states. Still, the ruling was hailed as a major victory for gun advocates.

The Supreme Court's decision in McDonald v. City of Chicago (2010) clarified that the Second Amendment similarly applied to states thanks to the Fourteenth Amendment's due process clause. Yet despite these rulings, the debate over the right to bear arms continued, often becoming highly politically polarized and resurging after publicized incidents of gun violence. Prominent pro-gun lobbying groups, such as the National Rifle Association (NRA) wielded considerable influence, and pro-regulation groups such as the Brady Campaign also sought to impact various lawsuits and legislation.

Bibliography

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