Getting the Right Aim on
the Second Amendment

by Kerby Anderson

Attorney General John Ashcroft has been criticized by gun control advocates because he wants to return to a sound interpretation of the Second Amendment. In a legal brief filed in May, the Justice Department explained its belief that this constitutional provision applies to individuals.

The Second Amendments 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." The traditional view has been that the Second Amendment protects only the right to carry guns when serving in a militia. The legal brief filed by the Justice Department declares that this protection extends to an individual's right to keep and bear arms irrespective of their involvement in a state militia.

Response from gun control advocates has been ballistic. Michael Barnes, president of the Brady Center to Prevent Gun Violence says, "The worst fears about Attorney General Ashcroft have come true: His extreme ideology on guns has now become government policy."

But is this extreme ideology or rather a reasonable interpretation based upon the facts of law and history? What the Justice Department did was reject the view held by the Clinton administration of the "collective right" to keep and bear arms if you are a member of a militia and set forth the belief "that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service."

Much of the confusion stems from a 1939 case where the high court argued that the Second Amendment did not guarantee the right to a sawed-off shotgun because this weapon did not have "a reasonable relationship" to a well regulated militia. Actually the Supreme Court did not reject the idea of an individual right to keep and bear arms, nor did it embrace a collective right view either. But over time, a collective right view became the defacto interpretation, especially in the Clinton administration.

What the Justice Department's legal brief attempts to do is return to the original understanding of the Second Amendment. This reading is supported by legal scholars as well as a proper understanding of constitutional history.

For example, Harvard law professor Laurence Tribe has always brought a liberal interpretation to constitutional law. Nevertheless, he surprised many people when he published a constitutional textbook arguing that the Second Amendment assures Americans the right "to possess and use firearms in defense of themselves and their homes" and therefore concluded that "the federal government may not disarm individual citizens without some unusually strong justification."

Yale law professor Akhil Reed Amar believes that the Fourteenth Amendment was adopted after the Civil War to prevent certain rights from being abridged by the states, including a "right to have a gun in one's home for self-protection, because police could not always be trusted to protect blacks."

Leonard Levy writing in Origins of the Bill of Rights argues that "the very language of the amendment is evidence that the right is a personal one, for it is not subordinated to the militia clause." He further adds that James Madison (often called the architect of the Constitution) "did not make the right to bear arms dependent on serving in the militia."

James Madison in Federalist Paper #46 talks about the "advantage of being armed, which the Americans posses over the people of almost every other nation." Madison goes on to note that these other "governments are afraid to trust the people with arms."

In the debate over the Constitution, Samuel Adams argued for a Bill of Rights so that the "Constitution shall never be construed to authorize Congress to . . . prevent the people of the United States who are peaceable citizens from keeping their own arms." At the Virginia Constitutional Convention, George Mason said Britain has plotted "to disarm the people" because "that was the best and most effective way to enslave them." Patrick Henry said, "The great object is that every man be armed. . . . Everyone who is able may have a gun."

Richard Henry Lee was a signer of the Declaration of Independence and framer of the Second Amendment in the First Congress. He said that a militia "are in fact the people themselves" and "for the most part employed at home in the private concerns." He proposed that: "To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them."

The right to keep and bear arms has a long tradition in both English and American law. English citizens were actually obliged to carry weapons. Similar provisions existed in the colonies. For example, in 1623 Virginia forbade colonist to travel unless they were "well armed." In 1631, every Virginian was required to engage in target practice. By 1658, every Virginian was to have a functioning firearm at home.

Joseph Story was the founder of the Harvard Law School and served on the Supreme Court for 34 years. He said, "The right of citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic since it offers a strong moral check against userpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

The Justice Department and Attorney General John Ashcroft are not attempting to change the Second Amendment but rather return to a proper interpretation of it. Few of the critics seem to have noticed that this administration in asserting an individual right to gun ownership is also defending federal laws that restrict gun ownership. Liberal and conservative legal scholars agree that an individual right to keep and bear arms does not preclude reasonable regulation through federal firearms laws.

While we might disagree over what constitutes "reasonable regulation," we should have no disagreement over the original intent of the Second Amendment. Constitutional history and subsequent legal interpretation all point to providing an individual right to keep and bear arms.