Recently, several events have occurred which have given me cause to consider the Second Amendment and gun control. First, the third anniversary of the Tree of Life shooting was about two weeks ago; this same anniversary caused gun control activists to criticize two bills put forth by the PA State Senate, Senate bills 565 and 448, which I wrote about in last week’s issue of the Behrend Beacon. Secondly, according to NBC, there was recently another tragic mass shooting which occurred at a Halloween party in Texas, in which 10 people were made casualties of gun violence. These kinds of events are usually catalysts for debate on gun control legislation, and these two were no exception. Given the relevance of the issue, and my own strong feelings on the matter, I decided to abuse my position as an editor and my proximity to our Editor of Opinions to promulgate my own stance on the Second Amendment and its relationship to gun control legislation. Note that in this essay I almost exclusively reference the Supreme Court case District of Columbia v. Heller; this is because this case helps to form the legal basis of the modern discourse surrounding the Second Amendment, and I want to tackle substantive arguments and not partisan talking points- in addition, I want to assert that the federal government does, in fact, have the authority to regulate weapons in any way which it so pleases.

“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 and scope of the rights guaranteed by the single sentence that makes up the Second Amendment has been the subject of fierce debate in the United States for decades. Particularly in the past three decades, the extent to which the federal government can regulate firearms has been a hot political issue. Gun rights advocates, claiming to be defending the Constitution, have claimed that the Constitution guarantees the right of American citizens to own a firearm, and have called most attempts to regulate the sale of firearms unconstitutional and have also made the claim that their opponents are disregarding or otherwise misinterpreting the Constitution to regulate firearms and deprive Americans of a fundamental right. However, this view is based on a perverted reading of the Second Amendment that claims that the Second Amendment is an individual right, rather than a collective right. 

The difference between individual rights and collective rights is important to note. The term individual right is fairly self-explanatory; an individual right is a right which is granted to an individual person as an individual person, including the freedoms of speech, religion and freedom from unreasonable search and seizure. A collective right, then, is the inverse of this; it is a right which is guaranteed to a group of people.  Some examples of collective rights are the rights to clean air and clean water, potentially the right to assembly- as this can only be done as a group- and, as I and many others have asserted, the right to keep and bear arms. 

As posited by the late Antonin Scalia in District of Columbia et al. v. Heller in 2008, the Second Amendment is an individual right. Firstly, Justice Scalia argues on page 6 of the Court’s Opinion in D.C v. Heller one reason the right to keep and bear arms is an individual right is because the well-regulated militia at the time of the founding would have constituted but a small subset of the population, i.e., able-bodied white men, while when the Constitution refers to “the people” in other places, it is referring to the wider body of people able to participate in the political process; to prove this, he makes reference to amendments number four, nine and 10, as well as to Article 1, Section II, which says that “The House of representatives shall be composed of members chosen every second year by the people of the several states.” Scalia instead makes the argument that the militia would have been understood at the time to be a “people’s militia,” which was privately armed and equipped, and which would have consisted of a wider range of people than the federally-regulated militia. He also argues that the Second Amendment carries with it an inherent right to use weapons for the purpose of self-defense, arguing that the English government had allowed citizens to keep weapons for self-defense and that several states had passed provisions in their constitutions before the Second Amendment was drafted which allowed citizens to carry weapons for their own self-defense. 

However, Scalia also lays some of my own points in his own opinion. He says of the relationship between the prefatory and the operating clause that “Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well-regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.”” In this assertion, Justice Scalia is absolutely correct. This is one of the several reasons that the assertion that the Second Amendment is an individual right is incorrect; after all, why mention the well-regulated militia at all if the right does not apply to it? One of the central tenets of Justice Scalia’s arguments in D.C. v. Heller is that James Madison refers to “the people” making up the “well-regulated militia” in the Second Amendment, and brings up a number of points to prove that by “the people,” Madison was actually talking about the citizens of the United States at large.  Further, in his argument that “the well-regulated militia” would have been at Justice Scalia conveniently neglects the words of The Federalist Number 29, in which Alexander Hamilton says “Little more can be reasonably aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of the year.” Note Hamilton’s use of the term “the people,” which Justice Scalia asserts had only been used by the framers with respect to individual rights; here we see the term “the people” clearly and unambiguously referring to members of the militia. And when Justice Scalia talks about the citizen militia being the ideal of the framers, it is important to note that many of the framers would have looked upon these volunteer militias with disdain because they were known to be incredibly poor soldiers. For example, in an incident detailed on page 284 of Ron Chernow’s biography of Alexander Hamilton, Hamilton derided the ability of the “citizen militias” in a eulogy for general Nathanael Greene, saying that they were a “mimicry of soldiership.” 

Justice Scalia argues that the Second Amendment’s right to keep and bear arms carries with it an inherent right to use weapons for the purposes of hunting and self-defense, and bases this off a number of state constitutions and early court cases. The early court cases which Justice Scalia fallaciously references in his opinion were state cases on pre-bill of rights state constitutional rights, arguing that these show some of the thought processes of the framers and demonstrated that they would have viewed the Second Amendment as an individual right. However, there are two things to note here. One is that the federal government had not to that point sought to regulate firearm sales among free white men; the first federal gun control law would not be passed until 1934, not to mention that several of these cases were from decades after the Second Amendment was made the law of the land. The other is that the rights of members of the well-regulated militia to keep and bear arms and use them for hunting and self-defense are not mutually exclusive. If a member of the National Guard is allowed to take home their service weapon, why should they not be able to use them in self-defense if an intruder invades their home and they fear for their life? 

All of this is to say: the Second Amendment is not an individual right; rather, it guarantees the right of members of the well-regulated militia- the National Guard of the respective states, in other words- to retain their service weapons and use them for self-defense or hunting as required. Since the Second Amendment only guarantees the right of the militia to keep and bear arms, why should the federal government be unable to regulate the sale of certain kinds of firearms? Driving, for example, is not a right which is guaranteed to everyone, and consequently, state governments are able to require that drivers receive a certain amount of training and have a certain level of skill in order to receive a driver’s license in order to protect other drivers and pedestrians who might be injured or killed by an incompetent or negligent driver. Why should the same philosophy not apply to firearms?