Understanding the Second Amendment

Is the Second Amendment’s guarantee of the right to “keep and bear arms” still relevant in modern America?

The United States Supreme Court seems to think so.  Second Amendment jurisprudence has shifted radically in the last few years.

What was once an almost forgotten amendment has taken on significant new life because of two recent decisions:  District of Columbia v. Heller (2008) andMcDonald v. Chicago (2010).

In Heller, the Supreme Court explicitly held for the first time that the right to keep and bear arms is a a “right” that is “exercised individually and belongs to all Americans.”  (District of Columbia v. Heller (2008) 128 S. Ct. 2783, 2791.)

The Supreme Court also took the opportunity to define “arms” as “weapons of offence, or armour of defence,” and “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”  (Id. at 2791.)

To “keep arms” refers to a “common way of referring to possessing arms”; and to “bear arms” refers “to the carrying of weapons outside of an organized militia.”  (Id. at 2792-93.)

Because the right to keep and bear arms is an individual right, the Supreme Court struck down Washington D.C.’s total ban on the possession of handguns as an infringement of that right:

“The handgun ban amounts to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute.”  (Id. at 2817-2818.)

Two years later, in McDonald v. Chicago, the Supreme Court expanded this guarantee against the American states.  As such, a near-total hand gun ban enacted by Chicago was unconstitutional.

What should someone make of all of this?

My own views on the Second Amendment have shifted significantly over the last several years.

I used to think that the protections of the Second Amendment were an anachronism, akin to the Third Amendment’s guarantee against the quartering of soldiers — a holdover from an earlier day when people distrusted each other, had little government and relied on firearms to hunt.

Today, I am not so sure.

I have come to appreciate why the Framers included the Second Amendment in the Bill of Rights.

As noted in McDonald, the essence of the right to keep and bear arms is, ultimately, the right to self-defense:

“Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is ‘the central component’ of the Second Amendment right.”  (McDonald v. Chicago (2010) No. 08-1521, 561 U.S. __ (slip op., at 19).)

Interestingly, the Supreme Court’s discussion of the right to keep and bear arms did not focus on colonial America — rather, the Court talked about the Civil War and the numerous attempts by Southern militias and governments to take away firearms from newly liberated slaves:

“In the first session of the 39th Congress, Senator Wilson told his colleagues: ‘In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages upon them;  and the same things are done in other sections of the country.’” ((Id. at __ (slip op., at 24).)

The Supreme Court quoted Samuel Pomeroy, a Republican senator from Kansas, who was alarmed at the disarming of newly freed slaves:

“Every man . . . should have the right to bear arms for the defense of himself and family and his homestead.  And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world,  where his wretchedness will forever remain complete.”   (Id. at __ (slip op., at 28).)

Does such a right make sense in modern America, where people have access to social services and the police?  I believe the answer is still yes — mostly because we are not as civilized and peaceful as we would like to think.

And the discussion in McDonald is fascinating precisely because the Supreme Court acknowledged this violence in American history.

It is a violence where the strong beat the weak; the rich exploit the poor; where families turn and fight each other.

In discussing the right to keep and bear arms, the Supreme Court did not emphasize colonists, pioneers, militia movements or the NRA.

The Supreme Court discussed the right of former slaves, black-skinned, to hold off angry white mobs by arming themselves.

The right to keep and bear arms protects the right of the weak to defend themselves against the aggression of the strong.

This is what the Second Amendment says: “If you are weak, if you are defenseless, then band together with others; discuss your problems; defend yourselves — that is your right.  And if necessary, keep and bear arms to defend yourselves.”

There is, in fact, a significant gun violence problem in the United States.  But the causes of this violence are deeper than simple access to guns.

Gun violence is a reflection of the violence that permeates American culture.

It is a reflection of the frayed social fabric and the continued way in which Americans target each other (look at Congress) instead of working together.

As such, any staunch supporter of the right to keep and bear arms should strongly favor the following:

– Firearm education:  It goes without saying that if Americans want to live in a society where the right to keep and bear arms is fundamental, then Americans should be educated on how to responsibly use this right.  This is a good idea for every right protected by the Constitution and the Bill of Rights, but in the case of firearms the results of ignorance are lethal.

– A robust mental health system:  Much of America’s gun violence results from deeply troubled individuals who lash out at the world with firearms.  Eric Harris, Dylan Klebold, Seung-Hui Cho, Jared Lee Loughner:  these names, and many more, are forever a deadly reminder of the wholly inadequate mental health care system amongst the United States.  These people should have been treated long before they took up arms against innocents.  Anyone who cares about the right to keep and bear arms should support mental health programs to ensure that such a right is never abused by people in desperate need of medical attention.

– Economic opportunity:  Gun violence erupts from mental illness; and it also erupts from poverty.  It is the poor who succumb to robbery, theft and gun violence in order to feed themselves and find meaning in a state of deprivation.  If the American states can provide better economic opportunities — and in particular, jobs that provide meaning and dignity — people will turn away from violent careers that may be more “profitable” in the short term but are just pathetic in the long term.

In the coming weeks, Comar Law intends to file an appeal concerning an unconstitutional deprivation of Second Amendment rights and will post the briefs on its website.  We are excited to be entering the foray of constitutional impact litigation, and it is fun to begin with the Second Amendment.  It is one piece of the puzzle; there are many more battles to fight and win.  It’s just the beginning, and we’re excited to see what’s possible.