Rethinking the 2nd Amendment

Don’t worry, I haven’t flipped sides on you guys or anything.  What I’m talking about actually is the article in Slate which looks at the right to keep and bear arms without the 2nd Amendment.  The author does start with the assumption that everything that the anti-gun types say is correct about the 2nd Amendment; and in various places in the article gives the impression that he would support a collective rights view.

However, the author does provide an interesting view of how we could preserve a right to keep and bear arms without the 2nd Amendment.

In addition to the Ninth Amendment, we should also view the right to bear arms through the lens of the 14th Amendment’s command that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Though this particular sentence applies only to the states, other language in the 14th Amendment affirms that the federal government, too, has a parallel obligation to respect the fundamental rights of citizens.

The article is an interesting read, I found myself see-sawing back and forth between agreeing with the author and disagreeing with the author.  For example, I agree with the statement like the above which talks about individual rights protected by the Constitution, however the statement below is one that I would have a hard time agreeing with.

By contrast, if the Second Amendment’s language really did guarantee a right to guns in homes, by what authority could judges allow for a different approach in D.C.? And then, if one has a Second Amendment right to a pistol or shotgun at home, why not a machine gun? Given that the Second Amendment’s core right is military, it would seem odd that military arms would be easier to ban than other weapons.

I disagree that the intent of the 2nd Amendment was for the military, and I disagree that its “core right” has anything to do with militias or the military.

Hence, my issue and see-saw with the article.  I do recommend it, read the whole thing.  It’s a well written piece for certain, and I like the concept of supporting a right to keep and bear arms separate from the 2nd Amendment.  The author does make some excellent points, especially regarding partner laws enacted around the 14th Amendment which specifically addressed the need to keep arms for self-defense.

…a companion statute to the 14th Amendment, enacted by Congress in 1866, declared that “laws … concerning personal liberty [and] personal security … including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens.”

While I don’t think that the 2nd Amendment represents a military or collective right, I enjoy the academic exercise of supporting the right to keep and bear arms outside of the 2nd Amendment, and I believe that having more than one source to back up our argument is an excellent idea.

3 thoughts on “Rethinking the 2nd Amendment”

  1. I disagree that the intent of the 2nd Amendment was for the military, and I disagree that its “core right” has anything to do with militias or the military.

    The text in question always struck me as very clear on its relevance to the militias of the time. That is not to say that the “core right” (however one defines such a thing, a question beyond me) is military in nature, but only that it’s impossible to separate the right to bear arms from its national defense implications.

  2. I would agree that the right to bear arms does have national defense implications, but that it’s not limited to that context.

    But I guess we’ll find out soon enough.

  3. If anything, a collective right to self-defense derives from the individual right to self-defense.

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