The 2nd Amendment to the Constitution is one of the most debated portions of that document. For generations the controversy in question is whether the Founders intended to give the right to keep and bear arms only to militias or also to individual citizens not serving in the military.
The Supreme Court may be on the verge of settling the issue once and for all. Last week, the High Court heard arguments in its second big gun rights case in the last few years. In 2008, the Court ruled in District of Columbia v. Heller that Washington, DC’s ban on gun ownership was unconstitutional. The ruling was a landmark decision for proponents of 2nd Amendment rights, but it only applied to federal enclaves like the District of Columbia. However, the case opened the door for a challenge to national gun ban laws. Currently before the Court is McDonald v. Chicago. At issue is whether Chicago’s gun ban is constitutional under the 2nd Amendment. The Court’s decision in this case will determine whether 2nd Amendment rights go beyond federal property and can be applied to the states and local governments.
Things look promising for gun rights advocates in McDonald based on a quote from the majority opinion penned by Justice Scalia in Heller. In Heller, Scalia stated, “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” He supported the majority’s position by stating the fact that gun possession was a right of Americans “…prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense…” Now, we have all heard the stories of the rugged frontiersmen with their guns they used for securing dinner and protecting the homestead. Thus, Scalia’s argument makes perfect sense. How could the authors of the Bill of Rights not guarantee a right early individual Americans already had and one so vital to their survival? The idea that the right was not protected through the 2nd Amendment is preposterous.
But there is more from the majority opinion that supports 2nd Amendment rights for individuals. The Court saw the individual’s right to keep arms as an important preservation of the citizen militia. According to Scalia, “The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty.” At the time of the 2nd Amendment’s drafting, a militia was “the body of all citizens capable of military service”. Thus, whether young, middle aged, or old the country may call upon you in an instant to serve in a militia to put down an insurrection or defend against foreign invasion. Denying you the initial right to own a gun that could be needed to defend the country in a time of emergency would have been counterproductive. The Court’s reasoning in support of individual gun rights is compelling to say the least.
Getting back to the current case before the Court, if the justices are consistent and overturn Chicago’s gun ban they will have to justify their applying the 2nd Amendment to states and local governments. Remember that Heller only applied to firearm possession on federal property. But, the means to apply the 2nd Amendment to states and localities is simple. Over time, the Court has used the 14th Amendment to bind states and localities to recognizing the 1st, 4th, 5th, 6th, 7th, and 8th Amendment rights of their citizens. In part it reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law…” If the Court grants individual Americans the right to keep and bear arms under the 2nd Amendment it will apply the right to the states under the 14th Amendment.
The current Supreme Court has a golden opportunity to set the record straight with regards to individual guns rights under the 2nd Amendment. The debate over the years has been very contentious with both sides misquoting the Founders’ statements about gun rights to suit their purposes. The Founders made a lot of statements about gun rights and how they apply to citizen militias. Understanding that at that time citizen militias meant “all citizens capable of military service” it is easy to come to the conclusion that the 2nd Amendment bestows a right to gun ownership to all individual Americans. Fortunately for America, it appears the Supreme Court will come to the same conclusion later this year.
Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina.