Putting the Second Amendment in context

  • 19 February 2018
  • NormanL
Context is everything

The most recent mass shooting, this time at a Florida high school, has again inflamed debate over gun rights. While it may seem impossible to have a rational discussion about firearms, it is still worthwhile to revisit why we have a Second Amendment at all. Jay Cost gives us an understanding of why the Bill of Rights speifically mentions gun rights. You should read the article in its entirety, but here is a sample. It begins with an understanding of the anti-Federalist objections to the then-proposed Constitution, but goes on to put the Second Amendment in broader context:

The Second Amendment, by protecting the right to bear arms, empowered the people to serve as the republican alternative for civil defense — the militia. In this way, the people could protect the homeland without the need for burdensome and dangerous military establishments. So, while the Second Amendment identifies an individual right, it does so with a public purpose in mind.

Of course, we in 2018 do not have the same worries about standing armies that Americans had in 1789. Our military is deferential to the civil authority, and is a model of courage and discipline. Just as important, the United States is wealthy enough to support it now, which it most certainly was not in 1789.

Yet this does not, in my judgment, render the Second Amendment a historical anachronism. It is not consistent with a limited, republican government for law enforcement to take over every aspect of civil defense, broadly understood to include internal dangers (from insurrection to crime) as well as external foes. That would require a massive kind of police/surveillance state. At a certain point, individuals in a republic need to defend themselves and their neighbors. Even though its prefatory clause speaks only about the militia, in spirit the Second Amendment protects this right — just as the First Amendment does not mention the Internet but protects this column.

This analysis also suggests that the Second Amendment is not some willy-nilly license to wield whatever weapon one likes. It establishes an individual right for a public purpose — and it therefore follows that the people, acting through their representatives, can properly set the terms of how that right will be enjoyed. This implies a fairly broad framework for a debate on regulations of armaments — even if, in 1789, weapons technology was so limited that the Founding generation could never anticipate the need for such deliberation.

As we debate what kind of response is prudent in the wake of Parkland, it is important to remember the nature of the right the Second Amendment originally protected — for it was not a selfish right to bear weapons for oneself, but a public-spirited right to ensure that citizens could defend the polity without recourse to omnipotent, unaccountable armed forces.

Agree or disagree with the analysis, it gives us some history to use as a guide for discussion. The inconvenient truth about the Second Amendment is that it allows individual citizens to bear arms. That doesn't mean there can't be reasonable limits or conditions placed on firearm ownership -- such limits already exist. But no law, and no regulation, can guard against evil. We can, and should, debate the failings of the FBI in the Florida shooting. We can and must address the mental health issues that have festered for too long in our society. And we must address the question of why schools, in particular, are the targets of choice for violence.

All of these need to take place in the context of the Second Amendment -- which, unless it is repealed, guarantees the right to keep and bear arms.