July 26, 1999
A New Constitution for a New Millennium: Gun Control.
The Second Amendment of the United States Constitution: “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.”
Pro-gunners disagree on the limits of this bill: some people believe it should be absolute, and any and all arms should be legal. Some pro-gunners draw what seem to be obvious limitations, for instance, the owning of a nuclear weapon or other weapon of mass destruction should be illegal. Some go even further, and declare that such heavy military equipment such as tanks, bazookas, etc., should be illegal, and then some believe that reasonable controls on items such as automatic machine guns are all right.
So, there is obviously much disagreement already about the limitations of the 2nd amendment. One thing is clear: the 2nd Amendment can be limited to a certain extent, morally and legally. First, let’s look at the moral arguments.
The moral arguments why the 2nd Amendment is not absolute.
First, it important to note that no right is absolute, even those supposedly granted by God and guaranteed in the Bill of Rights. For example, even though the 1st Amendment guarantees me the right to free speech, the right is limited. I cannot publish a newspaper in which I claim that a certain public figure, for example the president of a major company, is a cocaine user, if that fact is known to me to be completely untrue. So, libel is a valid abridgment of my right to free speech. Another classic example of an abridgment of this right is the imminent danger rule: I cannot stand up in a crowded theatre and scream that there is a fire (if there is not), because the ensuing panic may cause injury.
The reason abridgment of rights is sometimes valid is that rights can very easily clash. In the example above, my right to free speech clashes with the peoples rights to not be trampled. The same analysis can be applied to the 2nd Amendment. If the right to own a gun interferes with public safety, that right can morally be abridged, in order to protect public safety. And the courts have agreed with this position, as follows.
The legal arguments why the 2nd is not absolute
Throughout the history of the USA, many Court decisions have limited the right to keep and bear arms. The Miller case in the early 20th century limited the right to own certain classes of weapons. More recently, we have the following from the United States Court of Appeals, Sixth Circuit, which indicates that the clause about “a well regulated militia” does not mean that the average citizen is part of that militia: “Since the Second Amendment right ‘to keep and bear arms’ applies only to the right of the state to maintain a militia, and not to the individual’s right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.” (Stevens v. U.S., United States Court of Appeals, Sixth Circuit, 1971).
A similar ruling from the Seventh Circuit held that “Construing [the language of the Second Amendment] according to its plain meaning, it seems clear that the right to bear arms is inextricably connected to the preservation of a militia . . . We conclude that the right to keep and bear handguns is not guaranteed by the Second Amendment.” (Quilici v. Village of Morton Grove, U.S. Court of Appeals, Seventh Circuit, 1982).
Recently, although the Supreme Court has not issued a clear cut ruling on 2nd Amendment rights, a 1992 decision by the conservative majority stated that “Making a firearm without approval may be subject to criminal sanction, as is possession of an unregistered firearm and failure to pay the tax on one, 26 U.S.C. 5861, 5871.” (UNITED STATES, PETITIONER v. THOMPSON/CENTER ARMS COMPANY, on writ of certiorari to the United States Court of Appeals for the federal circuit, June 8, 1992). This opinion, written by Justice David Souter and joined by Chief Justice William Renhnquist and Justice Sandra Day O’Connor, indicates that the Supreme Court has a right to limit 2nd Amendment rights. So, it is clear that the 2nd Amendment is not absolute, and thus cannot be used as a prima facie reason why any gun should be legal.
Above, I referred to the debate even within the pro-gun camp over the limits of the 2nd Amendment. If the 2nd Amendment truly gave the right to keep and bear arms without any infringement, then surely such high-intensity arms such as nuclear missiles and tanks should be legal, or your 2nd Amendment “rights” are being abridged! Obviously, allowing free and easy access to any kind of armament would be a bad idea, so there should be some practical limitation. The question then becomes, who decides what these limits should be? The answer, of course, is that the people decide, through their representatives and the limited representation of the Supreme Court.
But what about the intent of the 2nd Amendment? Many pro-gunners believe that the 2nd Amendment is the Constitution’s way of making sure that our government never becomes tyrannical, and ensures that if it does, we will be able to overthrow it. There are a few reasons why this is not a good argument. First and most important, the Constitution was a document intended to create a government that could be changed by the people through peaceful means, and it has succeeded for over 200 years to that effect. Other democratic means exist to change, or even overthrow, the government. One counter-argument sometimes heard is that if the government disarms the populace, the populace is ripe for a dictatorial takeover, and cannot fight back. My response to this is simple: America has over 270,000,000 citizens at last count. No dictator could “take over” without popular support of these citizens.
There is always the possibility (although an incredibly remote one) that another Hitler may arise to power, democratically elected and supported, and begin to ignore the basic ideals of life, liberty, and the pursuit of happiness. But not only can we elect our leaders, we can throw them out as well. We have extensive checks and balances to make sure no one person or agency can have too much power, and we have a healthy respect for the democracy we have earned over the past 200 years. These are features that Nazi Germany and Imperial Japan lacked. There is always the possibility that another Hitler will come, yes, but in the meantime, we have at least ten thousand a year dying from guns, and countless more injured. We must weigh this certainty against the infinitely small chance that our well-constructed checks and balances will suddenly all fail.
Finally, there is the old canard about slavery; that only people with guns can avoid being slaves, and that only slaves lack the right to basic self defense. The response here is quite simple; when as many people die of gun related incidents as do every year, you are already a slave. You are a slave to a system in which you feel you need to carry a gun for self-protection. You are a slave to the chaos that mankind has worked for millennia to civilize. Perhaps we are all violent beasts at heart, and that will never change. But evidence of peaceful, relatively violent-crime-free societies such as Japan indicate