The Supreme Court will soon hear the DC Court Case dealing with the Second Amendment. A few months ago, Washington DC’s gun ban was overturned by the DC court of appeals which affirmed that the Second Amendment applies to individuals. Washington DC has since appealed to the Supreme Court. This is my take on the Second Amendment.
First here is the text of the Second Amendment (with emphasis added):
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.
Is it the right of the people? My answer is yes; and this personal right was the intent of the framers of the constitution.
The following from Federalist 46 (written by James Madison under the pseudonym “Publius”). Federalist 46 “The Influence of the State and Federal Governments Compared” was written to counter the opposition that the proposed Constitution provided for a standing army. Those opposed felt that such a force could be used by the government to oppress citizens (as had been seen in Europe etc) or enforce an oligarchy/despot. One way Madison addressed the objection was to note the ultimate trump card that citizens carried. That is, the ability to provide sufficient defense to prevent any tyrant and/or rogue army from infringing our citizen’s rights:
…Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors…
The above clearly shows the framers believed firearm possession (and the ability of credible defense) was a basic right. Further, the Second Amendment explicitly states that it pertains to “the people”. The State or states are to be the organizer of citizens (such as into units or formations), designate unit leaders, and provide training (“well regulated”) should a situation warrant such a militia be formed, however, “the people” are to comprise that militia. Fortunately, we have never come to the point of needing such an ad hoc military force.
Additionally, the right to bear arms as an inherent individual right is bolstered by the fact that Hamilton (in Federalist 84) argued against incorporating a Bill of Rights (first 10 Amendments) into the Constitution, which appertains to all levels of government. He argued that “the Constitution itself, in ever rational sense, and to every useful purpose, a Bill of Rights.” Hamilton was concerned that enumerating those rights would allow government or deceitful motives to argue that non enumerated, but inherent rights, were not protected by the Constitution. As a result, we have the Ninth Amendment to address this concern. That the right of the people to bear arms is enumerated in the Bill of Rights (which, according to Hamilton, was unnecessary), again shows essentially how important, and ‘unalienable’ the right was considered.
The Constitution serves as much to limit government as to establish it. The Bill of Rights specifies some of those limits (one of which is arms). If you the Second Amendment only pertains to government, it makes no sense. Why protect the right to arms if the government already retains that right with standing armed forces? It would be redundant and pointless. The only reason to enumerate the right is if it were one which could be infringed upon by government or nefarious authorities. An authoritative government will certainly not infringe upon itself, especially one which intends to suppress the populace (as described by Madison above).
Finally, the crux of the matter, in my opinion, is who’s rights the Bill of Rights was written to protect. It is not called the “Bill of State Rights” or the “Bill of Governmental Rights” for a reason. The focus is “the people”. Hopefully, that will not change when the Supreme Court rules on this issue.
For further reading see also: History of the militia in the United States – Constitution and Bill of Rights