When the Bill of Rights was ratified this week (Dec. 15) in 1791, the Founders never dreamed that centuries later the Second Amendment would become so controversial. To them, “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” was fairly straightforward language.
How wrong they were, as evidenced by the Supreme Court’s recent decision to rule on whether Washington, D.C.’s strict firearms law violates the Constitution, “a decision,” The Washington Post wrote, “that will raise the politically and culturally divisive issue of gun control just in time for the 2008 elections.”
The main controversy is over the phrase “A well-regulated militia,” and its relationship to the statement “the right of the people to keep and bear Arms, shall not be infringed.”
Gun-control advocates believe this language means that if you don’t belong to a “regulated militia,” your right to own a gun can be “infringed.” Gun-rights advocates counter by noting that the amendment does not grant a right; it recognizes a right already granted. The amendment does not say, “The people have the right to keep and bear arms.” It says, “the (already established) right of the people to keep and bear Arms, shall not be infringed.” And they have a point. As even the Supreme Court has acknowledged, the right to own firearms precedes the Bill of Rights.
Gun advocates also note that because the amendment gives the right to bear arms to the “people,” not the states, claiming that this right is dependent on anything the states do or don’t do — including forming militias — is ludicrous. After all, the Bill of Rights mentions no specific rights that the states possess, but several the people do.
Two additional points: In 1791, most state militias did not give guns to militiamen when militias were formed. Militiamen brought their guns with them — from home. Indeed, the amendment says they can “keep” their firearms, not merely “bear” them during military service.
Finally, (my hero) James Madison’s original Second Amendment language was as follows: “The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country.” Written that way, he is saying that if the people don’t have the right to arms, there can’t be a militia. That Congress reversed the order does not change Madison’s intent.
Granted, all constitutional rights, including free speech and gun ownership, are subject to reasonable restrictions — you can’t yell “Fire!” in a crowded theater, and felons can’t possess firearms. But the general right to own firearms is constitutionally protected. We will see what the Supreme Court thinks.