An inalienable right

When someday the history of the John Roberts era of the Supreme Court is written, no case may loom larger than District of Columbia v. Heller. That case, now before the court, concerns the Second Amendment. It is the first time in nearly seventy years that the Court has had the courage, or foolhardiness, to take up that provision. Perhaps that’s because to decide what the Second Amendment means, the justices must make a fundamental choice about what America means.

The Second Amendment reads in full: “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.” Some believe the amendment grants a right to keep and bear arms only within the government-regulated militia. Others argue that the Amendment grants people a right to have guns outside of — and even in opposition to — the government. The former is called the “collective right” theory; the latter the “individual right” theory.

To understand each view, one must understand what its proponents think James Madison and the First Congress had in mind when they wrote the amendment. It’s necessarily something of an exercise in speculation because they didn’t tell us. The only recorded discussion was about whether Quakers and others with religious scruples against bearing arms should be exempted from militia service.

Why guarantee a right to keep and bear arms within the government-regulated militia? The Constitution placed the militia under joint control of the federal and state governments. Previously, militia had been exclusively under state control. Southern anti-Federalists complained that the Constitution gave Congress the sole authority to arm the militia. Suppose, they asked, Congress did not do so, whether deliberately or from neglect? This raised two fears. One was that Congress would increasingly rely on a standing army, which made some nervous. The other was that without armed militia, the South would be vulnerable to slave revolts. Collective rights advocates believe the Second Amendment was written to ensure that the militia could always be armed, if not by Congress then by the states or the people themselves.

Individual right advocates argue that the Framers intended the Second Amendment to be the ultimate check on despotism. If the government were to become tyrannical, it would be resisted by an armed populace. Both the lower court and the plaintiff in the case, Dick Heller, make this argument. Heller is not a member of the government-regulated militia (the D.C. National Guard), and he believes that is exactly the point. The Framers wanted to protect an “independent, armed militia,” he contends.

This presents the five conservatives on the Supreme Court with a stark choice.

The man funding the Heller case, a fellow at the libertarian Cato Institute, admits that he is supporting the case in service, not of gun rights, but of libertarianism.

Libertarians are suspicious of government and place their ultimate faith in the individual. Some libertarians find the idea of armed citizens romantic. Not all individuals are Paul Revere or Davy Crockett, however. Some are John Wilkes Booth and Timothy McVeigh.

To traditional conservatives, the idea that people should be armed to go to war with their own government is anathema. The father of traditional conservatism, Edmund Burke, railed against the French Revolution, in which the people took up arms against the government. Burke knew that once the rule of law was overthrown, tyranny writ large would be the people themselves. Long before the guillotine had chopped off a single head, Burke foresaw the chaos and blood, and nearly a decade before Napoleon’s coup d’etat, he predicted that a charismatic military despot would rise to power. Traditional conservatives (and most liberals) believe the bulwarks against tyranny are constitutional democracy, separation of powers, an independent judiciary, freedom of speech and press — in short, not guns but the Constitution.

There is no middle ground. If the Second Amendment is about resisting governmental tyranny, then it protects a right to keep and bear weaponry necessary to go to war with the U.S. military, and one has a greater right to possess an anti-aircraft missile than a .22-caliber rifle.

We must hope that having had the courage to take this case, the justices will see it for what it is, and unequivocally chose ordered liberty over misguided romanticism.

Carl T. Bogus, a professor of law at Roger Williams University, is editor of “The Second Amendment in Law in History: Historians and Constitutional Scholars on the Right to Bear Arms.”