Second Amendment Remedies
The past decade was an excellent one for the National Rifle Association. During the 1990s, they, and other gun-ownership advocates, were on the ropes, pummeled by the crime wave, school shootings, and Bill Clinton. The first decade of the new millennium, on the other hand, brought the repeal or expiration of a score of gun control measures as well as a Supreme Court precedent in District of Columbia v. Heller, which recognized an individual right to own firearms, thereby enshrining an individual-rights reading of the Second Amendment, which 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.” Even in the wake of the Tucson shootings, gun control advocates have made little headway.
However, the modern debate on the Second Amendment has disregarded a crucial element of constitutional analysis: what the amendment is for. The Bill of Rights does not simply create rights arbitrarily. Instead, they are understood to serve a particular purpose in keeping American society free and democratic. For example, the First Amendment is understood to protect political speech in particular; this consideration shapes how we think of the amendment in general and how the courts apply it.
In the end, there is only one plausible purpose for the Second Amendment: a safeguard against oppression. Furthermore, the amendment itself suggests this. Its first clause explains that the amendment exists to protect the “security of a free State.” A state free, presumably, from the oppression of a despotic federal government. The Second Amendment exists so that, should the federal government grow tyrannical, American citizens would be able to win a second Revolutionary War.
This understanding has crucial implications for the individual-rights reading of the Second Amendment. If the Second Amendment serves to protect the practical ability of violent insurrection in the face of intolerable governments, it creates a right and a duty to shoot tyrants. Under the individual-rights reading, such right and duty belongs to every citizen, entirely by themselves. Now, the image of each citizen being individually bound to defend freedom may be appealing. But there is a fundamental problem with such an arrangement.
The individual-rights reading does not only allow each citizen to act on their own against tyranny. It also grants each citizen the power to determine what constitutes tyranny to begin with. This understanding places the safety of all of our elected officials and civil servants in the hands of those who most oppose them. The individual-rights reading, considered fully, implies that any American can independently decide that the federal government is tyrannical, and take up arms against that government.
The militia reading of the Second Amendment is different. If the Second Amendment only protects the individual right to keep arms inasmuch as it is instrumental to protect the rights of states to organize effective militias, then the same problems of decision do not arise. State militias—the forerunners to today’s national guard—are neither lone individuals nor small groups of ideologues. Instead, they are responsible to state governments, which, in turn, are responsible to the people of a state. Militias would only take up arms against the national government if there were genuine, widespread support in their state. While militias do not always act rightly—the Civil War being the prime example—they are not a force for anarchy. They obey the same democratic accountability that the regular U.S. military does.
However, the Supreme Court has rejected a militia reading of the Second Amendment, preferring instead the individual reading—with all its unexamined implications. This brings us back to the tragedy in Tucson. Certainly, the accused Jared L. Loughner was not a model revolutionary. He may have been mentally ill; he was apparently willing to shoot innocents in his furor at his target. But not all political assassins are mentally ill (if ill Mr. Loughner was), and not all of them are so careless. Nevertheless, all assassinations are abhorrent to the people of the U.S. The vast outpouring of grief and sympathy after the shootings was proof enough of that.
This is the fundamental inconsistency implicit in the recent individual-rights reading of the Second Amendment. The problem is not merely that this reading sabotages sensible and important gun control legislation. Rather, it implicitly endorses assassination. If the Second Amendment exists to allow Americans to shoot tyrants, and if each of us can decide on our own when our government is tyrannical, and who is therefore a legitimate target of attack, then political assassinations are exercises of important political freedoms rather than violent, tragic attacks on our public servants. The response to the events in Arizona has shown what the American people think of such attacks. It remains to be seen whether we will accept an understanding of the Second Amendment that is inconsistent with our hatred of such violence.
Louis R. Evans ‘13, a Social Studies concentrator, lives in Currier House.