Gun Control and the Right to Bear Arms: Part 2

Posted By Rogan Law || 19-Feb-2013

As the debate rages on across the nation and on every TV and Facebook account; I have narrowed down the arguments of gun control measures into three distinct groups.

  1. Absolutists
  2. Minutemen
  3. Defenders

Both "Absolutists" and "Minutemen" lack sound arguments or legal justification for claiming legislation aimed at expanding gun control is unconstitutional. The real debate lies between gun control activists and the "Defenders." Passing constitutional muster in enacting gun control measures is merely a matter of scope. First I will discuss and dispel the arguments that distract our nation from achieving real progress in reducing gun violence.

Absolutists

The first frivolous argument is championed by the Absolutists. Absolutists believe that since the Constitution, via the 2nd Amendment, explicitly gives the people a "right to bear arms," and that any restrictions or regulations infringing that right are unlawful and void. The text of the 2nd Amendment is as follows:

"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."

This faction of believers is armed with logic; however, they either have a poor understanding of history and Constitutional Law or choose to ignore the "living document" theory that governs most of Constitutional Law in the realm of gun control.

Absolutists lack the legal ammunition to make relevant and realistic arguments on the national level. Citizens need merely to look at other Constitutional Amendments such as the right to "free speech" or the right to "be free from warrantless arrest and unreasonable searches" to conclude that our laws operate in "shades of grey" rather than the black and white absolutes.

"Free speech" is an essential concept to an open and free society, however, free speech is not absolute.

Despite the common understanding of "freedom of speech" in our country, there are many areas of speech which are not protected by the First Amendment. First Amendment's "free speech" clause reads as follows,

"Congress shall make no law….abridging the freedom of speech."

Although the language is clear that "no law" can be passed to abridge that speech; normal citizens understand that they cannot yell "fire" in a crowded movie theater or print malicious and false information about another person without facing a lawsuit for libel.

Even Justice Scalia, the champion of "originalism" and conservatism on the Supreme Court, stated that the right to bear arms "was not unlimited." In the Supreme Court case D.C. v. Heller, Justice Scalia stated that "we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose."

Following an Absolutists logic pattern, a convicted felon or a mentally ill citizen has a fundamental right protected by the Constitution to own and use any weapon. Also, if the Second Amendment provides an absolute protection on an individual's right to bear arms; why can't wealthy private Americans buy anti-tank grenade launchers or surface to air missiles? If the definition of "arms" covers any technological advancement to keep pace with the Government; then the Absolutists should argue for "arms" that keep pace with military technology. That is the logical step. That is the flawed argument of Absolutists.

Minutemen

The second frivolous battle cry is championed by the Minutemen. The name is appropriate because these are the individuals who believe that their AR-15 and extended magazine clips will protect them from a tyrannical government oppressing their rights. Although this argument is based on the historical intent of the Framers of the Second Amendment, the argument is not based in tactical reality.

When the Second Amendment was written, it was designed to ensure the "people" had a functional means to repel foreign invaders (i.e. the British etc.) or overthrow a tyrannical government. The American Revolution was fresh in the minds of the Framers who understood the danger of giving too much power to the President and too little power to the "people." The Framers balanced these competing interests through a system of "checks and balances" in government, and by enshrining individual liberties in the Bill of Rights. In McDonald v. City of Chicago, a 2010 Supreme Court case, Justice Alito's opinion includes the following excerpts about the history of the Second Amendment;

"The right to keep and bear arms was considered…..fundamental by those who drafted and ratified the Bill of Rights. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. However,…….By the 1850's, the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights—the fear that the National Government would disarm the universal militia—had largely faded as a popular concern, but the right to keep and bear arms was highly valued for purposes of self-defense."

The British fought with muskets and long-rifles and the Patriots fought with muskets and rifles. This was basically an even match. The logic behind the Second Amendment was to ensure the "militiamen" and private citizens were armed with weapons which could repel an aggressor. However, as technological advances in military weaponry armed the Government with advanced killing machines far surpassing the rifle's ability to create carnage; private citizens sat idly by without shouting demands for advanced weapons. As Americans awed the advent of fighter aircraft, ballistic weapons, and nuclear technology, most citizens were unaware that they implicitly forfeited their right to keep pace with the military advancement in weaponry. Before our very eyes, the Second Amendment transformed into individual right of self-defense rather than the proper means of ensuring a militia could repel a tyrannical government.

In order for the Minutemen to regain legitimacy by arguing for the need for weapons to repel the Government, they need to reevaluate the tools necessary for achieving tactical victory against the superior military might that they would face. Although, the idea of arming citizens with assault rifles and 50-caliber guns may give Minutemen some solace in their existential struggle, the reality is that an AR-15 or any assault weapon available is no match against U.S. military power.

Similar to the Absolutists argument, the Minutemen logic would prevent any federal law from preventing private law-abiding citizens from obtaining weapons necessary to ensure the government couldn't disarm private citizens or impose rule through a standing army.

Without fighter aircraft, cruise missiles, or armored vehicles, the Minutemen don't stand a chance of achieving even minor tactical victory against a tyrannical government. Thus, in order for the intentions of Thomas Jefferson and the Framers to withstand the test of time; all weaponry available to the U.S. military should be available to private citizens.

In sum, the Abolitionists and Minutemen are arguing against reality and legal precedent. The real debate belongs in balancing the right of private citizens to defend themselves and their property and the dangers that military style weapons pose to the general welfare of our nation.

Next week, I will discuss the "Defenders" and the right path toward preventing future massacres without infringing on our right to self-defense.