The Flawed Second Amendment Debate
By Robert Greenslade © Nitwit Press
In recent years, the debate over the right to keep and bear arms has exploded into a heated controversy that has polarized the American people. At the center of this debate is the intent and wording of the Second Amendment. Those groups and individuals opposed to the private ownership of firearms argue that there is no individual right to keep and bear arms because the Amendment refers to the people's "collective right," as members of a well-regulated State militia. The contrary position is the Amendment created, and or secures an individual right. In the author's opinion, this debate, from a federal standpoint, is totally flawed because it is the system of government established by the Constitution that is the key to resolving this controversy not the intent and wording of the Second Amendment.
The Brady Campaign to Prevent Gun Violence, one of the groups opposed to the private ownership of firearms, claims the right enumerated in the Second Amendment pertains to the State militias. On their website, this organization claims the Second Amendment was adopted "to prevent the federal government from disarming the State militias."
The U.S. Constitution established a permanent professional army, controlled by the federal government. With the memory of King George III's troops fresh in their minds, many of the "anti-federalists" feared a standing army as an instrument of oppression. State militias were viewed as a counterbalance to the federal army and the Second Amendment was written to prevent the federal government from disarming the state militias.
This statement infers that the Constitution, as originally written, granted the federal government the power to disarm the militias and the States wrote and adopted the Second Amendment to prevent the federal government from exercising this constitutional power over their militias.
The Coalition to Stop Gun Violence claims the Amendment was adopted to "ensure the right of the states to maintain their own militias."
"The Second Amendment was adopted to ensure the right of states to maintain their own militia to protect themselves against foreign and federal encroachment."
This statement infers that the States either did not have the "right" to maintain their militias or if they did, the "right" was not secure until they adopted the Second Amendment.
Proponents of the individual right to keep and bear arms have also made various assertions concerning the Second Amendment. They claim the right enumerated in the Amendment is an individual right and refer to it as a "constitutional" or "Second Amendment" right. This assertion infers that the American people have the individual right to keep and bear arms because the right is specifically enumerated in one of the amendments to the Constitution.
In spite of the glaring differences between these two factions, they are in agreement on two points. First, there is a constitutional or Second Amendment right to keep and bear arms. One side claims the right is a "collective right" that pertains to the State militias, while the other asserts it is an individual right that pertains to the American people. Second, the protection of the right, whether it's collective or individual, depends on the Second Amendment.
Contrary to the assertions by the Brady Campaign and the Coalition to Stop Gun Violence, the individual States do not derive any rights or powers from the Constitution. The Constitution is a grant of power from the States to their federal government. When the Constitution was written and adopted, the States already had the so-called "collective right" to maintain armed militias independent of the federal government. Since this so-called "right" was never surrendered, and the federal government was not granted the power to prevent the States from maintaining armed militias, the States retained this "right" irrespective the Constitution or the subsequent adoption of the so-called "collective right" Second Amendment.
This principle also applies to the people of the several States. There was an existing right to possess firearms when the Constitution was written and adopted. Since the people did not surrender the right, and the federal government was not granted the general power to regulate the right or prevent the people from exercising the right within the several States, the people retained the right independent of the Constitution or any interpretation of the Second Amendment.
In the author's opinion, the firearms community has failed to grasp these principles. Anti-gun organizations, like those mentioned above, have been allowed to define the parameters of the debate. They have succeeded in restricting the debate, for the most part, to the intent and wording of the Second Amendment. Since the individual right to possess firearms exists independent of the Constitution or the Second Amendment, and the federal government was not granted the general power to regulate the right within the several States, the debate over the intent and wording of the Amendment is a diversion from the real issue.
The key component in this debate, from a federal standpoint, should be the system of limited government established by the Constitution. Those groups opposed to the private ownership of firearms have based their position on the erroneous belief that the federal government can enact any law it chooses unless the Constitution contains a specific provision restricting its power. This is a total distortion of the system of government established by the Constitution. The Constitution established a federal government of limited enumerated powers. Under this system of government, the federal government can only exercise those powers enumerated in the Constitution. The core principle of our constitutional system of government is every power not granted is denied irrespective of the subsequent adoption of the Tenth Amendment.
When there is a discussion over the individual right to keep and bear arms, the firearms community should refrain from debating the intent and wording of the Second Amendment. They should force their opponents to cite the provision of the Constitution, supported by the debates in the Federal [Constitutional] Convention of 1787 and the Federalist Essays that grants the federal government the general power to regulate the right within the several States. Since this power was never vested in the federal government, a debate over the intent and wording of the Second Amendment is like debating whether your neighbor can borrow your lawnmower on Sunday's when he was never given permission to use it in the first place.
Proponents of the "collective right" interpretation, in the author's opinion, have engaged in a systematic effort to distort the nature of the Constitution and the character of the federal government in order to prevail on this issue. In addition to their erroneous assertion that the Constitution established a general government of unlimited power, these groups and individuals claim individual rights come from, or depend upon, the Constitution and the Bill of Rights. Hence, their claim that there is no individual right to possess firearms because the right enumerated in the Second Amendment pertains to the State militia.
Contrary to the assertions of various anti-firearms organizations, the Bill of Rights did not create or establish any rights. The sole purpose of the Amendments, as stated in the preamble to the Bill of Rights, was to prevent the federal government from "misconstruing or abusing its powers." To accomplish this, "further declaratory and restrictive clauses" were being proposed. The Amendments, when adopted, simply placed additional restraints on the powers of the federal government. Thus, the Second Amendment did not confer any rights collective or individual.
The Second Amendment is like adding an extra lock to the front door of your house. Even if you didn't add it, you could still lock the door. If the Second Amendment had never been added to the Constitution, the States would still have the "collective right" to maintain armed militias and the people would still have the individual right to keep and bear arms because the Amendment is not the source of these rights and the federal government was never granted the general power to regulate either.