Revisioning the Right to Keep and Bear Arms

Once again our community is being plagued by gun violence and yet we still seemed focused on the symptoms and not the disease. While we are all too eager to decry the proliferation of gun related violence when it reveals itself in horrific events such as that of Sandy Hook, we seem strangely reluctant to turn that level of shock, outrage and urgency of action inward on ourselves. And just as importantly, we refuse to ask the foundational question about the constitutional right to gun ownership that seems to create an impenetrable wall of resistance to even the most minimal notion of gun control.

From my first day of law school I had a running argument with my Constitutional Law professor about the 2nd Amendment and the public perception that the right to bear arms is constitutionally guaranteed. Historically, the presence or absence of a “right to keep and bear arms” has been the subject of vigorous debate among constitutional law scholars for more than 150 years and I have added my own small contribution to that ongoing difference of opinion.

The text of the amendment 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.” In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court ruled that the Second Amendment "codified a pre-existing right" and that it "protects an individual right to possess a firearm unconnected with service in a militia”. With respect, this analysis misses the mark. Service in a militia is not the determining factor. Rather, the “need” for a militia determines the constitutional right to keep and bear arms. My very point is that today we do not need a militia to secure our safety and, therefore, do not need to keep and bear arms to safeguard that security.

I would argue that the right to arm oneself was indeed necessary at a time when citizens had no other means of safeguarding themselves and their homes. They “needed” a regulated citizen militia for the common defense. But in today's world we have police forces and standing armies for exactly that purpose. Without the existence of that communal need, there is no right to bear arms for security’s sake. That right has now evolved by dint of time and civility to a privilege and like the license to operate a motor vehicle it is a privilege that must be exercised responsibly.

While many sections of the Constitution of the United States are appropriately susceptible to a "plain text" or "literal" reading, the 2nd Amendment, in my view, is not. I believe the framers envisioned an evolving document that would be responsive to the changes of a young and still maturing nation; changes that they could anticipate but could not foresee. The ambiguity in the phrasing of the arms clause places the responsibility to revision that clause on future generations. As part of the future those great and prescient men only glimpsed, it is incumbent upon us to take up this question in earnest. If we cannot evolve as a society, then we have failed those founding fathers and equally failed that foundational document which was created to guide our evolution as a society of fellow citizens and as a nation of laws.