There is no doubt that gun violence in the United States is a problem, but so is the progressive loss of freedoms. The Second Amendment is very short because when it was drafted, no explanation was needed. How you interpret the text depends on your worldview.
There are a few topics that are guaranteed to stir up fierce debate within the United States: Abortion, the Freedom of Religion, and the Freedom of Speech, to name a few. The “Right to Bear Arms” is another.
There are good and knowledgeable people on both sides of the issue and recent tragedies have brought this debate into sharp focus.
Some people question why, with so much crime and violence in the country, would people want to keep the sale and possession of firearms legal. Others point out that far more violent crimes are committed with other weapons, such as clubs and knives.
Many on Capitol Hill would like to ban all firearms outright, but there is one thing preventing them from introducing such a law—the United States Constitution. The Second Amendment to the Constitution states:
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.
The meaning of this amendment has been heatedly and vociferously debated over the last 50 years. As with most things in the law, many court decisions have revolved around a single word or phrase. In this case, what does the term “people” mean? Does “people” refer to a group of people, such as a “militia”; if so, what is a militia?
Those who favor gun rights put forth the idea that the right to keep and bear arms is an individual right just as are the freedoms of speech and religion. Those who favor gun control stress that the right applies only to collective groups, such as the military and police forces.
How you interpret the text depends on your worldview. There are those that believe that the Constitution is a “living, breathing document”; they believe that the meaning of the Constitution changes over time and that the implementation of this document needs to change as well. They believe that any court decision, especially those of the U.S. Supreme Court, can interpret the meaning of the document in the light of the current culture and laws set forth in other countries.
There are also those that believe that the meaning of the Constitution depends on the “original intent” of the document; that the interpretation of the Constitution should be made in light of the original meaning of the text at the time of its writing.
“Living and Breathing” vs. Original Intent
The Second Amendment is very short because when it was drafted, no explanation was needed. As Chief Justice Taft said:
The language of the Constitution cannot be interpreted safely except by reference to the common law … as it was when the instrument was framed and adopted.
To look at what the English Common Law was, one can look to writings outside the fledgling country by an Englishman well versed in that law. In 1782 Grandville Sharp (a strong supporter of American independence) said, “The laws of England always required the people to be armed, and not only armed, but to be expert in arms.”1
To those that believe that the Constitution is a “living” document subject to modern interpretation must look past the men who wrote the Constitution for the basis of their argument. The term itself as it applies to the Constitution comes from the title of the 1927 book The Living Constitution by Professor Howard McBain, while later efforts to promote the concept were credited to such men as Oliver Wendell Holmes Jr. and Woodrow Wilson.
Supporters of a strict interpretation of the Constitution go back much farther. As explained by Noah Webster (the Founder responsible for Article I, Section 8 of the Constitution), serious error can result when the original intent is erased or ignored:
[I]n the lapse of two or three centuries, changes have taken place which … obscure the sense of the original languages.… The effect of these changes is that some words are … now used in a sense different from that which they had … [and thus] present a wrong signification or false ideas. Whenever words are understood in a sense different from that which they had when introduced… mistakes may be very injurious.2
On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.
Constitution signer James Madison agreed with Jefferson, stating:
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.… What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.
Our Founding Fathers had a very clear idea of what the meaning of the Constitution was in general and the Second Amendment in particular:
[T]he said Constitution [should] be never construed … to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.
— Samuel Adams
The right … of bearing arms … is declared to be inherent in the people.
— Fisher Ames3
The great object is that every man be armed.… Every one who is able may have a gun. But have we not learned by experience that, necessary as it is to have arms, … it is still far from being the case?
— Patrick Henry
The argument that the Second Amendment only applies to hunting and target shooting misses the mark. When the Second Amendment was written, hunting was an activity people did to put food on the table and target shooting was unheard of, given the cost of musket balls.
The Second Amendment was written by a group of people who had just fought a war against an oppressive government bent on keeping the colonies under subjugation. (The Battles of Lexington and Concord, the first military engagements of the Revolutionary War were fought because 700 British Regulars were given orders to seize the arms that were being held by the citizen militia in Concord, Massachusetts.)
The Bill of Rights
None of the items in the “Bill of Rights” (the first 10 amendments to the Constitution) gave people new rights; they were an affirmation of existing rights, some of the Founders wanted to assure they kept.
The Bill of Rights came about as a result of a compromise to get the Constitution itself ratified. Some of the Framers would not sign the document unless they were assured these amendments were put to a vote by the new states. Others, such as Thomas Jefferson, did not want to itemize the rights at all since he believed that by itemizing the rights, future administrations could argue that these were the only rights the people were guaranteed. (For more information on the framing of the Constitution, please see “The American Constitution” in the October 2012 issue of Personal Update).
A Slippery Slope
There are many people that believe this strict interpretation is not valid. Elliot Minsberg, Vice President of the group People for the American Way has stated, “It was the framers that intended that the Constitution would adapt to changing circumstances.”
Using this argument for judicial and legislative activism is, in the mind of strict constructionists, a slippery slope.
Over the course of history, there have been a series of Supreme Court decisions that have been very controversial and whether one believes that taking an activist stance in these cases depends on their political philosophy.
People that applaud the decision in Roe vs. Wade legalizing abortion were horrified with the Court’s decision in regard to the Florida Recount in the 2000 Presidential Election, essentially stopping the recount in that state with George W. Bush in the lead. It was Florida’s electoral vote that gave the election to Bush.
The Pathway to Change
The framers of the Constitution did realize that it would need to be revised and updated over time. However, it is not reasonable to assume that natural, God-given rights can be altered or abolished by nine people who sit on the Supreme Court for a limited period of time.
The framers (and the states that ratified the Constitution) provided a method for the people, not the courts or legislatures, to change the document. Article Five of the Constitution describes the method for modifying the document.
Article Five of the Constitution states that amendments may be proposed by either:
- Two-thirds of both houses of the United States Congress; or
- By a national convention assembled at the request of the legislatures of at least two-thirds of the states.
The proposed changes must then be ratified either by approval of:
- The legislatures of three-fourths of the states; or
- State ratifying conventions held in three-fourths of the states.
It is this method of updating the Constitution that must be followed. As Samuel Adams compellingly declared:
[T]he people alone have an incontestable, unalienable, and indefeasible right to institute government and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it. And the federal Constitution, according to the mode prescribed therein, has already undergone such amendments in several parts of it as from experience has been judged necessary.4
This is a slow, cumbersome, tedious process, as it should be. Even with this process, the country has had second thoughts about the few changes that were made. The Eighteenth Amendment to the Constitution which prohibited the manufacturing, importing, and exporting of alcoholic beverages took effect in 1920 and subsequently repealed by the Twenty-First Amendment in 1933. Given that amendments passed under this complicated process have been changed, how many rulings made by an activist judiciary need to be changed as well?
From the time the Constitution was ratified, it has been under assault, by lawmakers and the courts. Under the guise of “fairness” and “safety,” unjust bills have been passed and unseen bureaucrats have made pronouncements that carry the force of law. People have had the use of their property (and sometimes the property itself) denied them “for the common good” or to “preserve the environment.” They are no longer protected from “unreasonable search and seizure” in the name of public safety. They cannot practice their religion in the name of tolerance. They are murdered in the womb in the name of “privacy.”
This loss of freedom has not occurred under the presidential administration of just one party. The Patriot Act signed into law by George W. Bush, then expanded and continued by Barack Obama, is just one of many examples of American citizens being systematically stripped of their rights. Now, the Right to Keep and Bear Arms is on the table, for “our safety.”
There is absolutely no doubt that gun violence in the United States is a problem, but so is the progressive loss of freedoms. The current fight over gun control is not only a reflection of how the United States, as a country, will address the issue of violence, but also a debate over how far an activist court and federal legislature can go in circumventing the basic law of the land that protects the People’s God-given rights.
Kings or parliaments could not give the rights essential to happiness.… We claim them from a higher source—from the King of kings, and Lord of all the earth. They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives. In short, they are founded on the immutable maxims of reason and justice. It would be an insult on the Divine Majesty to say that he has given or allowed any man or body of men a right to make me miserable.5