Fit To Bear Arms

Chicago suffered through a violent couple days last weekend only to be confronted with more on Wednesday when five people were targeted and murdered in a south side home. Mayor Daley has called for a summit with community leaders to try and stop gun violence which has seen 40 people shot in less than a week with 12 deaths.

In a recent post, local blogger Emily Mills inveighed against the activities of Students for Concealed Carry on Campus, a group that wishes to see college students be allowed to pack heat on campus. Her post comes on the heels of the visit by the Green Bay gun dealer Eric Thompson to the Virginia Tech campus which recently commemorated the first anniversary of the shooting rampage by Seung-Hui Cho which left 33 people dead. Thompson sold Cho one of the guns used in the murders. In addition, Thompson sold handgun accessories to the man responsible for February's shooting spree at Northern Illinois University. An anonymous commenter at Emily's blog opined that "we should never completely deny [gun owners] their rights." Here's the relevant bit from the 2nd Amendment:

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.

I've been reading about the right to bear arms recently and here's what I've found.

A draft of Nathan Kozuskanich's essay "Originalism, History, and the Second Amendment: What Did Bearing Arms Really Mean to the Founders?" is available online and is very interesting. He posits that, today, most folks fall into one of two sides. There's the Individual Rights camp – the Charleton Hestons of our country – who say that the Second Amendment grants individuals the right to own guns for individual reasons. (E.g. – self-defense, hunting, et al) Then there's the Collective side which argues that it speaks to the states and their ability to maintain militias.

Nozuskanich looks at the use of the phrase "bear arms" in documents of the Founding period available from the Library of Congress. He concludes:

The sources prove that Americans consistently employed “bear arms” in a military sense in times of peace and in times of war, showing that the overwhelming use of bear arms had a military meaning. The results show that the militia and the common defense was a perennial concern often discussed in pamphlets and newspapers, unlike the individual right to self-defense.

I would urge anyone interested in the subject to read the paper. However, I'd like to provide one example of how a reading of old texts allows us to distinguish amongst meanings. I'll again quote at length:

In 1765, Georgia passed “An Act for the better ordering the Militia of this Province” which demanded that “every person liable to appear and bear arms at any muster . . . shall constantly keep and bring with him to such muster…one gun or musket fit for service…” Needless to say, concern for the common safety was heightened in Georgia because of the slave population. In the same year the Assembly passed an act “for the security and defence of this province” mandating that white men “be obliged to carry fire arms” in places of public worship. The law was very explicit in restricting such carrying of arms to “every white male inhabitant…who is or shall be liable to bear arms in the militia…” The distinction between “carry” and “bear” is quite clear and shows that the two terms were not synonymous, as some individual rights scholars have claimed. While men could carry arms in church, they could not be said to be bearing them since that was reserved for militia service.

Important too is how Nozuskanich shows that our modern binary oppositions on the issue do not completely apply to the Founding period.

The results also show that the individual rights and collective rights paradigms are too limiting in their conception of arms bearing and ownership in early America. The historical record is clear that Americans owned guns (which Individual Rights scholars have proven), but also equally clear that those guns were subject to robust regulation, most often by the militia organizations and through the militia service laws. The right of self-defense was widely accepted as a natural right that had been incorporated into the Common Law, but none of the sources in these databases make the crucial link between personal safety and a constitutional right to bear arms…Rather than an individual or collective right, Americans viewed the right to bear arms as a civic right linked to militia service.

It is interesting for me in the 21st century to see a right to linked to a shared responsibility as common discourse these days don't often link rights to responsibilities.

Saul Cornell argues much the same as Nozuskanich in his book A Well-Regulated Militia. A brief excerpt:

The original understanding of the Second Amendment was neither an individual right of self-defense nor a collective right of the states, but rather a civic right that guaranteed that citizens would be able to keep and bear those arms need to meet their legal obligation to participate in a well-regulated militia. Nothing better captured this constitutional ideal than the minuteman. Citizens had a legal obligation to outfit themselves with a musket at their own expense and were expected to turn out at a minute's notice to defend their community, state, and eventually their nation. The minuteman ideal was far less individualistic than most gun rights people assume, and far more martial in spirit than most gun control advocates realize.

Although each side in the modern debate claims to be faithful to the historic Second Amendment, a restoration of its original meaning, re-creating the world of minuteman, would be a nightmare that neither side would welcome. It would certainly involve more intrusive gun regulation, not less. Proponents of gun rights would not relish the idea of mandatory gun registration, nor would they be eager to welcome government officials into their homes to inspect privately owned weapons as they did in Revolutionary days. Gun control advocates might blanch at the notion that all Americans would be required to receive firearms training and would certainly look askance at the idea of requiring all able-bodied citizens to purchase their own military-style assault weapons. Yet if the civic right to bear arms of the Founding were reintroduced, this is exactly what citizens would be obligated to do. A restoration of the original understanding of the Second Amendment would require all these measures and much more.

Cornell and Nozuskanich make convincing arguments that the Second Amendment was not intended to give individuals the right to own guns for self-defense. Indeed, Cornell shows how the interpretation for an individual's right is a product of the 19th century. But this is the 21st century and we live in a very different society from the one that existed when James Madison authored the Second Amendment. In the short term, understanding Madison's words are important for deciding whether to allow college students to pack heat on campus. In the long term, though, it's up to we the people to decide what kind of gun laws we want. Just because the Founders wanted one thing doesn't mean we can't demand another. If it comes to it, the Constitution can be amended. Discussions about the direction of our national policy should not focus on what Madison and the other Founding Fathers wanted but rather about what we here in the 21st century want.