Term Paper: Right to Bear Arms - A Constitutionally

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Right to Bear Arms - a Constitutionally Protected Right

Today, the interpretation of the Second Amendment has polarized the American people among two different views (Greenslade, 2004). Those opposed to private ownership of firearms argue that there is no individual right to keep and bear arms because the Second Amendment refers to the people's collective right as a members of a well-regulated State militia. In contrast, the individual rights view holds that individuals may bring claims or raise challenges based on a violation of their rights under the Second Amendment just as they do to vindicate individual rights secured by other provisions of the Bill of Rights. This view appears to be the most valid after placing the Second Amendment in appropriate historical and Constitutional context.

Historical Background

The right to keep and bear arms evolved from a duty in seventeenth century England into a right in eighteenth century America (Malcom, 1994). English citizens were initially obliged to keep arms for personal defense. The adoption of a British Bill of Rights 1689 later included an explicit right to arms for defense. The British Bill of Rights 1689 is a direct ancestor of the Second Amendment in the American Bill of Rights; however, American founders extended specific individual right to keep and bear arms to also include a right for a general militia.

Prior to the U.S. Constitution, the right to arms was consistently a personal one based on several factors. "Beginning with the right of individual English subjects to have arms for their defense, it was supplemented in revolutionary America with the notion that a citizen militia, comprising the armed citizenry, was a particularly important means of securing free government." ("Whether the Second Amendment Secures an Individual Right," 2004) American leaders such as Thomas Jefferson proposed that "no free man shall ever be debarred the use of arms," and Samuel Adams called for an amendment banning any law "to prevent the people of the United States who are peaceable citizens from keeping their own arms." ("The Right to Keep and Bear Arms," 1982)

Following the American Revolution, several states such as Pennsylvania, North Carolina, Vermont and Massachusetts included explicit right-to-bear-arms provisions in their declarations of rights. The bills of rights emerged from the ratifying conventions of these States. Every recommendation in these state conventions regarding the right to arms sought to protect an individual right - not a right to maintain well-regulated state militias, whether belonging to the States or to those serving in such entities and served as a basis for the first draft of the Second Amendment ("The Right to Keep and Bear Arms," 1982). The Second Amendment was then debated and modified during two sessions of the House and sent to the Senate on August 24, 1789 ("Second Amendment to the United States Constitution"). There were a few more changes, and the final version, "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 agreed to on September 21, 1789 and transmitted to the states for ratification. On December 15, 1791, the Virginia legislated ratified the Bill of Rights, providing the three-fourths of the states needed to make the Amendments part of the Constitution ("Second Amendment to the United States Constitution").

3.0 Constitutional Interpretation

An analysis of the context and meaning of "the right of the people," "to keep and bear arms" and "a well regulated militia, being necessary to the security of a free State" supports private gun ownership rights.

3.1 "The Right of the People"

Cleary, the "rights of the people" means the rights of individuals in the Second Amendment. The right to keep and bear arms is an individual right just as are all rights in the first ten amendments ("Second Amendment to the United States Constitution"). Further, "the people" used in the First, Fourth, Ninth and Tenth Amendments refers only to individual rights. Although in some contexts entities other than individuals are said to have "rights," the Constitution itself does not use the word "right" in this way ("Whether the Second Amendment Secures an Individual Right," 2004). For example, the Constitution never confers a "right" on any governmental entity, state or federal. Nor does it confer any "right" restricted to persons in governmental service, such as members of an organized military unit. Instead, state and federal governments have in the Constitution only "powers" or "authority."

When "right" is used together with "the people" the right must belong to individuals because people are not a State or the Militia ("Whether the Second Amendment Secures an Individual Right," 2004). Evidence shows that the only truly "collective" use of the "the people" at the time of the Founding was to refer to the people as they existed apart from government or any service to it. For example, the Declaration of Independence refers to "one People" dissolving their political bonds with another and forming their own nation, and "We the people" created the Constitution in ratifying conventions chosen "by the People" of each State. Thus, when "the right of the people" appears in the Constitution, it indicates a personal right of individuals, whether that be a right to assemble and petition, to be secure in one's person and property, or to keep and bear arms.

3.2 "To Keep and Bear Arms"

The phrase "keep arms" at the time of the founding of the U.S. Constitution usually indicated the private ownership and retention of arms by individuals as individuals, not the stockpiling of arms by a government or its soldiers ("Whether the Second Amendment Secures an Individual Right," 2004). When "to keep and bear arms" is used in conjunction with "right of the people" in the Second Amendment, it's even clearer that the arms being referred to are those of private ownership. While it is true that the phrase "bear arms" often referred to carrying of arms in military service, it was also used to denote carrying arms for private purposes.

3.3 "A Well Regulated Militia, being Necessary to the Security of a Free State"

History professor Saul Cornell (2006) and others assert that the original understanding of the Second Amendment was neither an individual right nor a collective right of the states, but rather a civic right that guaranteed that citizens would be able to keep and bear those arms needed to meet their legal obligation to participate in a well-regulated militia. However, the Second Amendment's prefatory clause, "A well regulated Militia, being necessary to the security of a free State" does not negate individual rights if considered in proper context ("The Right to Keep and Bear Arms," 1982). In the Militia Act of 1792, the second Congress defined "militia of the United States" to include almost every free adult male in the U.S. These persons were required by law to possess a firearm and a minimum supply of ammunition and military equipment. Therefore, there is little doubt that when the Congress and the people spoke of a "militia," they had reference to the traditional concept of the entire populace capable of bearing arms, and not to any formal group such as what is today called the National Guard. The purpose was to create an armed citizenry, which the political theorists at the time considered essential to ward off tyranny.

Even today, there is still no requirement for a person to be in services such as the National Guard or the Naval Militia to be in the militia. This is because the U.S. Code: Title 10: Section 311 defines the classes of the militia as the organized militia which consists of the National Guard and the Naval Militia and the unorganized militia which consists of the members of the militia who are not members of the National Guard or the Naval Militia ("Second Amendment to the United States Constitution").

4.0 Challenges to the Second Amendment

There has been substantial legal debate over what right the Second Amendment protects, the rights of an individual or the rights of the state. The Supreme Court appears to affirm individual protection by the Second Amendment, but only for maintenance of a militia or other similar public force. The Supreme Court found in Presser v. Illinois (1886) that states do not have the power to infringe upon the right to keep and bear arms. In United States v. Miller (1939), the Court ruled that there was no constitutional right to own a sawed-off shotgun, because it had no "reasonable relationship to the preservation or efficiency of a well-regulated militia." ("Federal Court Cases Regarding the Second Amendment") Later, in Lewis v. United States (1980), the Supreme Court reached a similar conclusion as in United States v. Miller. The Supreme Court stated, "the Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well-regulated militia'" ("Federal Court Cases Regarding the Second Amendment"). The outcome of United States v. Vergudo-Urquirdez (1990) made… [END OF PREVIEW]

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