Does the Second Amendment grant a right to bear arms?The Second Amendment may be the only place in the U.S. Constitution that uses the words "people" and "arms" in the same sentence, but it may actually be the weakest protection for an individual right to keep and bear arms compared to other Constitutional protections to life, liberty, and the pursuit of happiness.
Since the Newtown Massacre of 20 children and seven adults in December 2012, gun control has become a popular topic to opine about. Though most discussions drip with irrational statements by both those that would disarm Americans and others that fear disarmament, most seem to believe the right to bear arms is given by the second amendment.
The Second Amendment to the United States Constitution reads:
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.
Rather than debate whether that amendment gives or protects the right for individuals to bear arms, or simply own them and keep them in a locker, or whether that right is expressly for the purpose of arming a well regulated militia, let's read another of the original ten--the Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
After reading the ninth, does the second have a different meaning, or for the purposes of an individual's right to own or even carry firearms on their person, does the second have less meaning?
But which rights might not have been enumerated? In addition to those described in Miranda, Gideon, and Roe, they would include natural rights, including those enjoyed by 18th century Americans (that included carrying weapons) and others referenced in the preamble to The Declaration of Independence.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Some may argue the Declaration isn't law, and they would be both right and wrong. Though it isn't the letter of the law, as our constitution is, it is included by congress at the beginning of the US Code (of laws) under the heading, "The Organic Laws of the United States of America."
"Despite its secondary authority, many later reform movements have quoted the Declaration in support of their cause, including movements for universal suffrage, Abolition of Slavery, women's rights, and Civil Rights for African Americans. Many have argued that this document influenced the passage and wording of such important developments in U.S. law and government as the Thirteenth and Fourteenth Amendments, which banned slavery and sought to make African Americans equal citizens."
In the years after the Civil War, former slaves (freedmen) were easy targets by many that still thought blacks inferior and responsible for the South's loss. In many states, blacks weren't allowed to own guns, which made them easy victims for the Ku Klux Klan and other less organized gangs.
When the NRA was formed after the civil war by ex-Union officers, the saying used to be, "When guns are outlawed, only Klansman will have guns."
A 2011 article in The Atlantic picks-up the story from there.
IN RESPONSE TO the Black Codes and the mounting atrocities against blacks in the former Confederacy, the North sought to reaffirm the freedmen’s constitutional rights, including their right to possess guns. General Daniel E. Sickles ... ordered in January 1866 that “the constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed.” When South Carolinians ignored Sickles’s order and others like it, Congress passed the Freedmen’s Bureau Act of July 1866, which assured ex-slaves the “full and equal benefit of all laws and proceedings concerning personal liberty … including the constitutional right to bear arms.”
One prosecutor in [President Andrew Johnson's] impeachment trial, Representative John Bingham of Ohio, thought that the only way to protect the freedmen’s rights was to amend the Constitution. In December of 1865, Bingham had proposed what would become the Fourteenth Amendment to the Constitution. Among its provisions was a guarantee that all citizens would be secure in their fundamental rights:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Given this background, the impact of the Second Amendment becomes less important regarding the right of American citizens to bear arms than the Ninth and Fourteenth Amendments. In fact, after a little bit of reading the decisions in Heller and Moore supporting individual's rights to carry seem more obvious conclusions in retrospect than they were even in argument as both decisions spent more of their time debating the meaning of the Second Amendment than either the Ninth and Fourteenth.