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Tuesday, December 13, 2005
Interpreting the Right to Bear Arms

Many opponents of gun control argue that the Constitution protects ensurs that no one "infringes" on their right to bear arms as individual citizens. Gun control, in fact, could be a way to protect the right from the "infringement" of criminal behavior within American society. I don't find a strong argument in the constitutional text for gun control.

The problem with the second amendment is that it is not written in a grammatically straight-forward way per our modern usage of English. Let's trot out the text and analyze the sentence:

" 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.”

First, we can conclude that a well-regulated militia is necessary to the security of a free State given the position of the adjectival apposite in relation to the subject of the sentence: "A well regulated Militia." I'm certain that the Supreme Court or the Congress has, at some point, clarified the criteria concerning what it means to be a militia, and, what it means to be "well regulated."

Second, the sentence is, presumably, about the subject "A well regulated Militia" and all subsequent clauses before the verb "shall" refer back to the subject.

Third, this militia is necessary to the "security of a free State." It would, at this point, be appropriate to figure out how militia functioned as a social and security institution in colonial America because it is unclear whether the state whose freedom is preserved by the presence of the militia is a "state" like the United States, or a "state" like Wisconsin or New York. It would also tell us what "security" might have meant, given that the "security" of the country comes from the armed forces and the security of the people comes from the police. If "security" meant protection from the British, then the right to keep and bears arms is protected by the very fact that any citizen can join the armed forces in some capacity. If "security" meant stealing land from Indians and continuing a genocide, then we no longer face that condition and it could simply refer to the right of police persons to bear arms. (This reading would favor preventing the arming of slaves to foreclose the option of a slave rebellion.)

The "right of the people to keep and bear Arms" occurs at a odd place grammatically due to the appositive immediately prior setting the general reason (to secure the freedom of the state). Given the supremacy of the militia as the subject of the sentence, there is textual evidence to believe that the right of the people was not a direct one, but a right that existing because of citizen access to certain institutions--the militia for the writers of this text and the armed forces/police for us. That would be consistent with two implementations of arms control laws, one historical, the other present.

The fact that even after the Reconstruction Amendments blacks were forbidden to own and carry guns--even though most freedman purchased guns as a sign of their freedom--suggested that their collective right as a people to bear arms for their security existed through the occupying force of the standing army in the south. This would also be consistent with the demand of the Black Panthers to form all-black militias to protect African-Americans in the 1960s and 1970s from police brutality and racial terrorism.

If it were a direct inalienable right of every person, rather a collective right of the people exercised through representative institutions like the armed forces, the police, or, for the Panthers, all-black militias, then we would not be able to restrict felons from owning guns. However, if their collective security is provided for by the police or the national army, then their right to bears arms is protected from the point of view of the text.

If the right did not belong to the people, hired legions of mercenaries would be constitutionally permissible as a means of providing national or personal security. This means bodyguards might be illegal.

Finally, we come to the small matter of what entails an "infringement" of the right to a well-order militia/ right to bear arms. This is underspecified in the text. However, the underspecification does not seem to preclude Congressional oversight (gun control) on the matter because we have to distinguish it from the phrase "congress shall make no law" which occurred earlier in the text (First Amendment). It seems to me that as long as the armed forces and police have the funding to provide for the security of the citizens the right of the people to bears arms for their security.

Guns in the hands of citizens outside a well-regulated militia setting, then, are a threat precisely because giving the choice to an individual to use guns outside that structure decreases the security of the free state, and thereby strips the people of their rights to security under the Constitution. The second amendment, thus, may militate for gun control laws.