Guns: A Loaded Argument
The language of the Second Amendment seems straightforward: "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." Yet the debate rages on: Does each American citizen
have the right to own firearms or not?
Last year, the U.S. Court of Appeals for the Fifth Circuit said
yes. Citing historical evidence that clearly shows the Second
Amendment was intended as a personal right, the Court said the
Constitution guarantees to each individual American the right to
keep and bear arms. The Justice Department soon adopted this
Wrong, the Ninth Circuit recently responded. In an opinion penned
by one of the same judges who declared the phrase "under God" in
the Pledge of Allegiance unconstitutional, the Court recounted
different historical evidence to conclude that the Second Amendment
protects only the right of the people to maintain an effective
militia. In other words, the amendment doesn't protect individual
rights at all.
With the decision of the Ninth Circuit, the issue is ripe for
resolution by the Supreme Court. Indeed, some observers say that
the Ninth Circuit's ruling is something of a challenge to the
Court, deliberately setting up a conflict between it and the Fifth
Circuit and daring the federal government to look the other way.
It's been more than 60 years since the Supreme Court last
considered the question, so it may not be able to avoid resolving
it much longer.
The issue isn't so much the amount of regulation. Hardly anyone,
including the vast majority of those who say the Second Amendment
protects an individual right, suggests that the amendment is an
absolute prohibition on all government regulation of the use and
ownership of firearms. Yes, they say, the amendment doesn't
prohibit the government from making it illegal for the average
citizen to own, say, a grenade launcher or an anti‑tank
missile. And yes, those who own automatic weapons should register
No, the issue isn't "reasonable regulation." Everyone agrees that
within some reasonable bounds, the government can and should
regulate who owns which types of weapons.
What then lies behind the conflict? A question as old as
civilization itself: Exactly how much power does the government
have to regulate individual conduct? Our Founders' answer to the
question was plain: The Constitution comes down squarely on the
side of limited government and individual liberty. Our entire
Constitution resonates with the idea that "that government is best
which governs least" -- and the Second Amendment is no
This view was widely held at the time the Constitution was framed.
One commentary on the Bill of Rights, published anonymously in the
Pennsylvania Gazette in 1788, asked: "Who are the militia? Are they
not ourselves? ... Congress has no power to disarm the militia.
Their swords … are the birthright of an American. …
[T]he unlimited power of the sword is not in the hands of either
the federal or state governments, but, where I trust in God it will
ever remain, in the hands of the people."
Some of the Founders themselves made it clear that the Fifth
Circuit's position isn't exactly a radical one. "Laws that forbid
the carrying of arms … serve rather to encourage than to
prevent homicides, for an unarmed man may be attacked with greater
confidence than an armed man," said Thomas Jefferson in his
"Commonplace Book." Alexander Hamilton wrote in "The Federalist
Papers" that no federal army could threaten our liberties as long
as "a large body of citizens," proficient in "the use of arms,"
stands ready to defend them.
A due regard for this history demonstrates the error of the Ninth
Circuit's decision. Though the question may have little practical
consequences, it lies at the core of the American self-conception
and makes all the difference in the world. For at the center of the
American heritage lies a distrust of governmental power. Just how
that heritage plays out in this case may soon be decided by the
Supreme Court. It should remember where we came from.
Rosenzweig is a senior legal research fellow in the
Center for Legal and Judicial Studies at The Heritage Foundation
and an adjunct professor of law at George Mason University.
Distributed nationally on the Knight-Ridder Tribune wire