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The Right to Bear Arms: Why this Constitutional Entitlement has become little more than a Dangerous Anachronism in the Twenty-First Century

AIH399 MAKING HISTORY
DEAKIN UNIVERSITY

by Elizabeth Guarino

 

Executive Summary

  • Popularised contemporary interpretations of the right to bear arms outlined in the Second Amendment of the US Constitution have become decontextualised.
  • The prevalent understanding of the Second Amendment is that it confers a right on individual American citizens to own guns for personal protection.
  • The context of the American Revolution (1775-1783) clarifies, however, that this entitlement was aimed at preserving the right to national security when faced by an oppressive government. Against the backdrop of revolution and the struggle for independence against British rule, the Founding Fathers of the Constitution clearly intended to give force to a document aimed at military protection from an oppressive government.
  • A close reading of the wording of the Constitution and the congressional records provide evidence for a correct interpretation of the Second Amendment.
  • The gun homicide rate per capita in the United States is 30 times higher than that of Britain and Australia.  Gun-related statistics in the United States suggest that the ease of access to firearms contributes to the high rates of crime.
  • American public policy should be aimed at the prevention of gun-related crime, rather than the promotion of an outdated concern for gun ownership as a means of protection against crime.
  • US courts have consistently misinterpreted the Second Amendment due a continuous failure to contextualise and search for the original intent of the right to bear arms. This was most recently seen in the ruling on Second Amendment, Heller v District of Columbia.

On 20 July 2012, James Holmes entered a movie theatre in Colorado. Holmes opened fire on the audience, killing twelve people and wounding 58 others. This represents the highest recorded number of casualties in an American mass shooting. The incident is yet another demonstration of the current ease of access to firearms in the United States, which statistics suggest increases the likelihood of crime.

The Second Amendment in the US Constitution gives rise to the ‘right to bear arms’ in contemporary American society. This right to bear arms confers a broad entitlement to possess a gun for self-protection purposes. The Constitution established American national government and fundamental laws, and guaranteed certain basic rights for all US citizens. Current legislation giving effect to this right has its origins in the Second Amendment of the US Constitution (signed on 17 September 1787).  It provides, inter alia, that:

…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 reading of the Second Amendment properly contextualised against the backdrop of the American Revolution clarifies that the current interpretation of the constitutional right to possess a gun in the United States does not encapsulate the intention of the Founding Fathers. When drafting this profound document, setting out the fundamental laws by which the country would be governed, they intended the right to be understood as arising in the context of a militia, rather than as an individual right. The manner in which the Second Amendment is worded indicates this intention of its authors to limit this right to a military context. Furthermore, contemporary policy consideration should focus on the prevention of gun-related crimes instead of the promotion of an outdated gun culture. The ubiquitous misinterpretation of this constitutional entitlement has been indicative of the justice system’s inability to accurately contextualise the original Amendment.

The drafting of the Constitution was in response to the American Revolutionary War (1775-1783). It is reasonable to assume, then, the notion to ‘bear arms’ was used to connote military action as a collective right. The main catalyst for the American Revolution was the growing tension between colonists and British authorities. This arose after British authorities attempted to tax the colonies by endeavouring to introduce the Stamp Act 1765, the Townshend Tariffs of 1767, and the Tea Act of 1773. The underlying purpose of such legislation was best exemplified by Charles Townshend who argued that ‘the superiority of the mother country can at no time be better exerted than now’. The colonies, disgruntled by such imperial oppression, demanded the same rights as British subjects and equal representation in parliament. The revolutionary struggle that eventuated was the colonists’ fight for independence from British reign. The significance of the Revolution was that the colonists fought a ‘people’s war’ against the superior military prowess of British imperial power. Thus, the national right to revolt against a foreign oppressor was the ideological stimulation for the drafting of the US Constitution. When historical context is taken into account, then, the logical interpretation of the ‘right to bear arms’ is that it is a collective right to be exercised by citizens when the ‘free state’ (i.e. the United States) is threatened by an oppressive government or foreign aggressor, and not that of an individual right to self-defence.

Furthermore, the intention of the draftsmen to introduce a collective right is exemplified by James Madison, ‘the Father of the Constitution’, who professed whilst contributing to the constitutional drafting that the onset of the document would prevent incidents like Lexington and Concord (19 April 1775). These incidents saw British authorities endeavour to assert their supremacy in the revolution by their attempt to seize colonial leaders Sam Adams and John Hancock and take control of the colonial armoury. By writing the Second Amendment, Madison sought to permit the state governments, or the people themselves, to bear arms out of civic duty to one’s country in the instance that it is necessary for the defence of the state. Historian Nathan Kozusckanich asserts that Madison clearly appealed to the ideal of the ‘republican militia as the bulwark of liberty’.

The intended context of the right to bear arms for the protection of the ‘free state’ was further seen at the conclusion of the revolution in 1783. It became evident that the newfound republic required a strong centralised government to sustain its stability.  The preservation of newfound American independence was contingent on protection against potential foreign threats. This task primarily was military in nature and, consequently, the collective right to bear arms in an organised militia in the instance of foreign invasion was of relevance. Thus, the drafting of the Second Amendment after the revolution was intended by its framers to be a civic duty to bear arms in a well-regulated militia context only.

A close reading of the phraseology of the Constitution and the congressional records clarifies the connection the Second Amendment has to the militia. The US Congressional records prior to the Constitution’s drafting are essential to the interpretation of the Constitution as they provide genuine insight into the original intent of the constitutional draftsmen. The congressional records indicate that the framers were concerned only with the militia as they consistently reference to the right to bear arms by referencing the formation of a military necessary to national protection throughout such records. Yet, such records are devoid of any mention of the right to bear arms in the context of an individual right to self-defence. This confirms, in fact, that there was never an unqualified right for an individual to possess a gun. Facilitating this argument is the inclusion of Article 1, Section 8 of the Constitution, which indicates the rationale for the Second Amendment was to check congressional authority over the militia. The legislative branch of the US government in these supplementary clauses tends to provide for the organization and the arming of a militia, and not that of an individual’s right to armaments in a self-defence framework. Finally, the Second Amendment contains a preamble relevant to its purpose. The preamble states that the Second Amendment purports to protect ‘the security of a free State’ by way of a state militia. Therefore, the Second Amendment clearly has its roots in military protection with no reference to an individual right to arms for self-defence purposes.

The conventional meaning of the broad right to bear arms in contemporary American society should be overturned in the interests of public policy. In the current crime climate of the United States, a significant public policy concern should be limiting the Second Amendment to a military context to deter crime. Gun advocates propose that criminals are deterred from committing offences due to the likelihood of many households possessing a gun for self-protection purposes. Yet, there is a paucity of proof that this is the effect of gun ownership when addressing gun-related statistics. The United States ranks number one in the world in civilian gun ownership. A recent survey estimated that 283 million guns are privately owned in the United States. This figure equates to 88.8 in every 100 Americans owning a firearm of some description. Yet, the gun-related crime rate in the United States is exorbitant when compared to other countries, indicating the prevalence of firearms does not deter crime as gun enthusiasts proclaim. US gun homicide rate per capita is 30 times higher than that of Britain and Australia. Another shocking statistic revealed that, in 2010, some 8775 people were murdered by an individual with a gun. Thus, it is clear that the promotion of gun culture in crime prevention is endorsing a disproportionate measure and an increasingly violent society, which is more inclined to turn to fatal weaponry for protection. It is a logical conclusion that the increase in the number of guns does not decrease the number of gun-related deaths.

Courts have interpreted the wording of the Second Amendment ‘to bear arms’ as analogous to the carrying of arms by ordinary people for self-defence purposes, as it continually refers to the ‘right of the people’ throughout the Constitution. The Second Amendment’s position in the Constitution is amongst other entitlements that guarantee individual personal rights, such as the right to freedom of speech (in the Fourteenth Amendment). Thus, the placement of the Second Amendment has been perceived to be indicative of the drafters’ intent to confer on individuals rights. Yet, the courts rarely interpret the Constitution with reference to its origin of intent. Judicial inquest into the issue rarely refer to the circumstances of the American Revolution that gave rise to its existence, nor do they typically consider the congressional records of the draftsmen relevant. This was observed in the most recent Supreme Court case on the interpretation of the Second Amendment, District of Columbia v Heller. Justice Scalia held that:

…the Second Amendment protects an individual’s right to possess a firearm for traditionally lawful purposes, such as self-defense within the home.

Scalia based his conclusion of the Second Amendment on the ‘normal meaning of the words’, which is consequently the decontextualised public understanding of the right that has developed over time. This plain-meaning misinterpretation neglects mention of the founding context of the constitution. The reliance on what the Second Amendment has come to mean in the public domain is irrelevant as the right to bear arms has been significantly decontextualised. Contemplation of the circumstances of the US Constitution is extremely relevant as it is this doctrine that underpins and authorises current firearm legislation. The continued misinterpretation of the Constitution’s origins has led to the validation of the unconstitutional individual right to possess a gun in a broad range of circumstances.

The contemporary understanding of the right to bear arms is that it confers on individuals the ability to possess a gun for personal protection. Yet, the origins of this entitlement — the American Revolutionary War (1775-1783) and the struggle for independence against British colonial rule — provide the appropriate context in which the Founding Fathers intended the enactment of this right. In reality, the Second Amendment of the US Constitution gives rise to the collective right to bear arms in a military context in the face of an oppressive government. The overall phrasing of this Constitution clarifies this limited right to bear arms in a militia context, as it continually refers to the military and is devoid of any reference to an individual right. Furthermore, contemporary policy consideration should be aimed at the prevention of crime by limiting gun ownership. The widespread misinterpretation of the Second Amendment is due to a failure to contextualise the original intent of the Founding Fathers. Consequently, the original intention of the Founding Fathers to provide for a Constitutional right to bear arms in the context of an organised militia has become a dangerous anachronism.

 

 

Selected further reading:

Blocher, Joseph, ‘The Right Not to Keep or Bear Arms’, Stanford Law Review, vol. 64, 2012, pp.1-16.

Busch, Michael, ‘Is the Second Amendment an Individual or a Collective Right: United States v Emerson’s Revolutionary Interpretation of the Right to Bear Arms, St. John’s Law Review, vol. 77, 2003, pp-345-370.

Goldman, Russell, ‘Alleged Colorado Shooter James Holmes Is Dazed in Court’ ABC News, 23 July 2012, retrieved 4 October 2012, http://abcnews.go.com/US/colorado-shooting-suspect-james-holmes-appears-court/story?id=16834757

Henigan, Dennis, A., ‘The Heller Paradox’, UCLA Law Review, vol. 56, 2009, pp. 1171-1210.

Leddy, E.L., Magum Force Lobby: The National Rifle Association Fights Gun Control, University Press of America, Lanham, 1987.

Kates, Don. B., ‘A Modern Historiography of the Second Amendment’, UCLA Law Review, vol. 56, 2009, pp. 1211-1232.

Kleck, G & Kates, D.B., Armed: New Perspectives on Gun Control, Prometheus Books, New York, 2001.

Kozuskanich, Nathan, ‘Originalism in a Digital Age’, Journal of the Early Republic, vol. 29, 2009, pp. 586-606.

Kruschke, E.R., Gun Control: A Reference Handbook, ABC-CLIO, California, 1995.

The History Channel website, America in the British Empire, 2012, retrieved 26 September 2012, http://www.history.com/topics/america-in-the-british-empire

Wright, J.D, Rossi, P.H., Daly, K, Under the Gun: Weapons, Crime and Violence in America, Aldine Publishing Company, New York, 1983.

Zakaria, Fareed, ‘The Case for Gun Control’, Time Magazine U.S. Online, 10 August 2012, retrieved 3 October 2012, www.time.com/time/magazine/article/0,9171,2121660,00.html

 

Citation: Elizabeth Guarino, The Right to Bear Arms: Why this Constitutional Entitlement has become little more than a Dangerous Anachronism in the Twenty-First Century. Australian Policy and History. October 2012.

URL: http://www.aph.org.au/the-right-to

Permanent link to this article: http://aph.org.au/the-right-to