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Frankly Speaking: I Do Not Think This "Right to Bear Arms" Means What You Think It Means

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Guns are most certainly part of the problem.

Every time a high profile incidence of gun violence makes national headlines, there is a renewed call to revisit our gun control laws. And just as predictably, there are those who raise their voices in protest, loudly proclaiming their right to bear arms. To that second group: you keep using that phrase, "Right to Bear Arms." I do not think it means what you think it means. Before I address the meaning of the Second Amendment, however, I'd like to cover some of the other common arguments I've been hearing from those who are wary of any new restrictions on gun rights. 

Guns don't kill people; people kill people. 

Guns are simply a tool, so the argument goes. People are the ones to blame. 

Yes, it is true; people kill people. So this one deserves at least half credit. But if people are to blame, then we are to blame collectively at least as much as we are to blame individually. We, as a society, failed those children who were killed in Connecticut in December. We failed those children, we failed their families, we failed that community, we failed those teachers, we failed all the other people who have been victims of gun violence in the past, and yes, we even failed the killers. We failed to put adequate measures in place to prevent these things from happening. 

Of course, guns are only part of the problem, and as much as we need to have a serious conversation about gun control, we also need to have a serious conversation about how we treat mental health in this country, and I don't want to gloss over this issue, or any other issue that may be part of this conversation, like our pervasive culture of violence. But these are large and complex issues we are trying to address, and it's hard to focus on all of them at once. So right now, I want to focus on the guns, because whatever other contributing factors are leading to these incidents, guns are most certainly part of the problem. 

Forget about the more than 19,000 suicides and 600 accidental deaths attributed to guns in this country every year, and the 23,000 accidental gun-related injuries—that still leaves us with more than 11,000 homicides and 52,000 non-fatal shootings. This rate of gun violence is unparalleled among first world countries. Most countries in Europe, for example, have a firearm-related homicide rate that is less than one tenth the rate of the United States. And excluding Eastern Europe, the overall homicide rate here is more than four times higher.

So yes, people do kill people, and people will find a way to kill people whether guns are available or not, but it's no surprise that guns are used in more than 68% of all murders in the U.S., and that in places where guns are less available, the homicide rate is generally lower. Because guns sure do make killing people a fucking hell of a lot easier. 

Stricter Gun Control Laws Won't Prevent Criminals from Getting Guns.

If the first argument got half credit, this one hardly gets any at all. According to the Coalition to Prevent Gun Violence, the National Instant Criminal Background Check System (NICS) has prevented nearly 1.8 million criminals and other prohibited purchasers from buying guns. And yes, some of those people may go somewhere else to find a gun, but the idea that all of them would is a tired generalization. In reality, this applies mostly to professional criminals—members of gangs, drug cartels, and other crime syndicates. It may also apply to serial killers, and some mass murderers, but likely not the majority of them. And not the majority of the people who commit suicide, or many of the people who commit homicide either, so lumping all these groups into the same category doesn't make much sense.

The real problem, however, is that the laws we have in place have loopholes big enough to drive a tank through. Again, according to the Coalition to Prevent Gun Violence, 40% of the guns purchased in the U.S. are purchased without background checks due to loopholes that many states have for gun shows and internet purchases. And it is also true that stricter gun control laws are correlated with fewer incidences of gun violence. In fact, we see these rates fall in other countries with the enactment of stricter gun laws.

So, while it's true that stricter gun control laws won't prevent all criminals from getting guns, that doesn't seem like a very good reason to not at least try to make it more difficult. And if done properly, these laws should not pose unreasonable barriers to most responsible gun owners, either. So is a little inconvenience worth it if the net effect is that these regulations save innocent lives? In my opinion, absolutely. 

We need the right to bear arms to prevent government tyranny!

At the extreme, we hear people worried that the government is going to take away their guns; that this right was bestowed upon them to ensure our freedom from tyranny, and that any infringement on the right to bear arms jeopardizes this freedom, particularly if violent insurrection should become necessary. 

To most of us, the problems with this argument should be readily apparent. Even if every person who thinks this way had a cache of several hundred assault weapons, it would still be no match for the firepower our armed forces have at their disposal. It is also hard to imagine that after nearly 250 years of democratic rule, we would not be able to settle any disputes about how we should govern ourselves at the ballot box, and in the halls of Congress. That, and it seems almost unimaginable that the members of our armed forces would turn against their fellow citizens. 

Now of course, only a small minority makes such extreme arguments, and hardly anyone advocates for banning guns outright, but the rhetoric around this issue, the talk of the government coming to "take people's guns," and the need to "protect the right to bear arms" is rather pervasive on the right. And so the conversation often quickly devolves into this all-or-nothing stance that prevents a meaningful conversation. 

It is a strange dynamic, particularly because no one claims the government can't impose reasonable arms restrictions. We already have regulations in place that say, for example, random citizens do not have the right to keep and bear nuclear arms. And no one in their right mind disagrees with that. Nor do most people have a problem with the government bans on the public sale and ownership of fully automatic assault weapons, armor-piercing bullets, guns that are undetectable by standard metal detection units, and other weapons designed not for self-defense, but for war. And once we have established that we are willing to put restrictions on some types of arms, then the premise that the right to bear arms is subject to reasonable restrictions and regulations has already been conceded, and we are really just arguing over a matter of degrees. 

It's not as if a lot of the measures being proposed don't have an incredible amount of popular support, either. According to a CNN/ORC poll released this past August, more than 90% of the American public favors requiring background checks for all gun sales, and banning the sale of guns to violent criminals and the mentally ill, and nearly 80% believes registration should be required. 

One would think with these levels of support, legislation to close loopholes permitting the sale of guns to people who shouldn't have them would almost be a non-issue, with a smooth sail through Congress. And yet, the most significant thing Congress has done to address the gun violence issue in the last decade has been to let the assault weapons ban expire in 2004—a ban that, again according to the CNN/ORC poll, 60% of Americans favor reinstating, along with a ban on high capacity cartridges. 

Many people will look to the NRA and talk about how they have managed to dominate the gun control debate over the past few decades, and how their political power has an outsized impact on not what is or is not included in gun control legislation, but also in shaping elections. And while this may be true, the rhetoric around the right to bear arms has also played a major part in impeding rational debate about reasonable gun control laws. Far from its intended meaning, this phrase now makes it exceedingly difficult to have any conversation at all about the regulation of firearms. That really needs to change. 

Deconstructing the Second Amendment.

Now I know this may come to a shock to some people, but nowhere in the Constitution is there any mention of an individual right to bear arms. Before you go into a full-blown rage and start pounding out a nasty comment though, allow me to explain. First, let's take a look at what the Second Amendment actually says:

"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."

There are two very important phrases here. The first is "a well regulated militia." The right to bear arms isn't guaranteed to any random citizen who wants to own a gun; it is predicated on being a part of a well regulated militia, like say the National Guard for instance. And even if we are to consider "militia" in the demographic sense, as all able-bodied males age 17-45, there is still that bit about being "well regulated."

The second key phrase is that all-important constituency of "the people." It is important here to note that "the people" is a collective body, distinguishable from individual persons, and that other amendments refer directly or indirectly to individual persons (Amendment 5 and Amendments 3 and 6, respectively), or refer to the collective rights of the people, but do not contain qualifiers or prefatory statements (Amendments 1 and 4).  In fact, the Second Amendment is the only amendment that contains any sort of prefatory clause whatsoever, so it would seem that if the Founders had meant to bestow the right to bear arms on just anyone, and without any restrictions, there would have been no reason to include that bit about a well regulated militia, and they could have easily used the term "persons" instead of "the people." And yet, a lot of people seem to ignore this prefatory clause altogether, perhaps believing it to be a bit of rhetorical flourish, even though such flourishes are otherwise absent.

This willful ignorance of the Second Amendment is present even at the highest levels, and has led to numerous liberal interpretations that are actually deleterious to the Constitution's stated purposes of insuring domestic Tranquility, promoting the general Welfare, and securing the blessings of Liberty (to say, live in peace, and be reasonably secure from the tragedy of gun violence). The most commonly cited example of this would be the supposedly conservative Justice Antonin Scalia's 5-4 majority opinion in the 2008 D.C. vs. Heller case. Scalia wrote:

"The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes, such as self-defense at home."

The problems with this are numerous. Not only is the Second Amendment bestowed on "the people" for the purpose of having "a well regulated militia," but the stated purpose of the amendment is "the security of a free State," which is not quite the same as the security of individuals or their homes. 

Additionally, it should be pointed out here that in the defense of his decision, Scalia stated that:

"The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms."

I'm not going to delve into the historical realities surrounding the Second Amendment (you can find a great account of that here), or how those historical realities no longer seem relevant, but I think the drafting history is worth mentioning because the converse to Scalia's argument isn't dubious, nor does it require much interpretation at all. Previous drafts of the amendment unequivocally referred to an individual right to bear arms. These drafts were not ratified, and in the final draft, this language was expressly left out. Instead, what was ratified was not an unequivocal individual right, but a right of the people, subject to certain prefatory clauses. Presumably because the Founders, too, did not think it a good idea for just anyone to own any arm they wanted for whatever reason, without any form of regulation. 

The irony here is that, even while striking down certain provisions in the D.C. law, Scalia took care to affirm that the individual right to bear arms unconnected to service in a militia, which he had conjured from the Second Amendment, was not absolute:

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding 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."

The point of this exercise is not to say that individuals do not have the right to be reasonably secure in their homes, or that this right may not include a provision to bear arms— only that if you take a strict, small "c" conservative reading of the Constitution, this right is not accorded to individuals, or for this purpose, by the Second Amendment. 

The Framers did, however, build one rather convenient catch-all into the Bill of Rights in the form of the Ninth Amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Framers weren't perfect, and neither was the document they created. And they knew that—it's why they included a provision to amend the Constitution. Otherwise, we might still consider African Americans as 3/5 of a person, and only accord white land-owning males the right to vote. 

No one argues that we don't have a gun violence problem in this country. And certainly stricter gun regulations aren't going to solve this problem alone—but the evidence presented here and elsewhere suggests that they have been effective in dramatically reducing the rate of firearm deaths and injuries. So it is time for those who would use the Second Amendment as an excuse—a dog whistle that prevents sensible gun control laws from becoming a reality—to join the rest of the civilized world in pursuit of a society that is as free as possible from the tragedies of gun violence. 

 


In a follow-up to this article, I will discuss a number of different reactions to the causes of gun violence in this country, and what we should do about it. In the mean time, add your name to the Whitehouse.gov petition calling for a sensible approach to reducing the frequency of senseless gun-related tragedies. 

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