Spencer Finley, Staff Writer
sjf5814@psu.edu

The Supreme Court issued a number of highly controversial rulings over the summer; among them were Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, West Virginia v. Environmental Protection Agency, which limited the power of executive-branch agencies to act through internal regulation, and New York State Rifle and Pistol Association v. Bruen.
Put simply, the Court held that because they recognized a right to individual firearm ownership District of Columbia v. Heller and McDonald v. Chicago, the Second Amendment, through the 14th Amendment, protected the individual right to carry a firearm in public without a permit. I believe that the ruling is deeply problematic from a practical policy standpoint; its ruling that public safety is irrelevant in considering the legality of firearm regulation is downright dangerous given the Court’s other rulings regarding firearms. The Court has held that there is an individual right to own a firearm that, while not absolute, is quite extensive- while in previous years one might have to provide a justification for carrying a pistol in public, the Court has decided that one may carry a firearm without justification, and that may-issue permits violate an individual right to own a firearm. This will likely lead to people getting hurt- has the presence of more weapons ever led to fewer people getting hurt? The absolutist tendency of the Court’s decision here makes less sense when one considers that in previous decisions, the Court even determined that the Second Amendment is not absolute- that one needs to have a Class III Weapons Permit to own a fully automatic weapon, and even within the Bruen ruling, they have said that certain sensitive areas ought to be subject to regulation.
However, from a legal standpoint, this ruling makes more sense. The ruling in Bruen must be considered as an extension of McDonald and Heller. These cases established an individual right to own a firearm, and the Supreme Court was acting in a manner that protects that right- it was standing by its decisions in those cases and acting to protect the right established. The decision authored by Thomas in this case liberally draws from the Court’s decision in Heller, and the application of the 14th Amendment to protect the Second Amendment can only be considered logical.
This brings me to my main point. While Bruen is a decision which will make gun control more difficult at the state and local level, and which will likely cause more people to be killed or hurt in incidents involving firearms, it is only a branch of a tree which is rotten to its roots. In order to ameliorate America’s gun problem, we have to rip that tree up by its roots- we have to acknowledge that the Court’s decision in Heller v. DC was wrong.
As mentioned previously, in Heller v. DC, the Court found that “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia.” They cite the fact that the “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. This strikes me as being an unconvincing argument in gleaning the true purpose of the Second Amendment.
Let us first consider the history of the militia. During the colonial period through the Early Republic, it was not considered a right, but an obligation that men between the ages of 16 and 30 serve in the militia. Colonial legislatures in what would be the United States of America passed legislation requiring- yes, requiring- that militia members purchase a musket that could be used for military service instead of the more popular fowler, which was a hunting weapon, often at the expense of the individual. The key difference between the two was that the fowler was rifled and lacked a bayonet lug, where the musket was smoothbore and could take a bayonet; this meant that the musket could be loaded much faster and could be used as a melee weapon much better than a fowler in the likely event it was called upon to do so, given the far inferior range of weaponry before the invention of the Minie ball in the early 19th Century. As stated previously, legislatures often required that the individual arm themselves at their own expense. The “ancient right” of firearm ownership, then started as being something far from a right in any sense in which we would recognize it today- it was an expensive obligation imposed on the individual by the government for the purpose of military service. To say that individuals had the right to own a firearm would be like saying that we have the right to be drafted into the military by the federal government during times of war. Scalia claims that people used their weapons for self-defense, but such a claim should not surprise anyone. That people used the weapons that they were obligated to purchase with their own money for purposes unconnected with militia service should surprise nobody, as it was still personal property; self-defense, to the best of my knowledge, was not unlawful in the American colonies during the colonial period, and use of personal property for purposes within the bounds of the law has always been a pillar of American society.

Then consider the perception of the militia in public discourse. The militia was thought to be of use in defending the rights of the people from an overbearing state; it was viewed as something necessary in preventing the need for a standing army, which people thought might be used to oppress the people and which might be used by a government to participate in unnecessary foreign wars. Protecting the militia was an extremely popular stance, too, because the militia was perceived by many as being critical to winning the Revolutionary War; it was not only a theoretical check against tyranny, but an actual check.

When we consider the role of politics in the ratification of the Bill of Rights, too, it can be gleaned that the framers did not intend for the Second Amendment to protect an individual right to firearm ownership unconnected with service in the militia. The U.S. Senate at the time of the ratification of the Bill of Rights was extremely Federalist and was largely opposed to the passage of a Bill of Rights at all; any Amendments they passed were designed to have as little impact on the original text as possible, and making a politically cheap concession to protect the existence of something that was popular whose existence was already partially provided for in the original text was a perfect way to maintain the appearance of having done something without actually changing too much.

Another argument that has been made in favor of an individual right to firearm ownership is that the Bill of Rights protects individual liberties and does not regulate the behavior of the government. This argument fails because it ignores key facts; for example, the 27th Amendment, which prevents Congress from raising its pay before an election, is not a protection of individual liberty and was originally the second amendment in the Bill of Rights.