- - Monday, December 12, 2016

The Founders would not have been surprised that the Second Amendment “right of the people to keep and bear arms” survives.

What would have surprised them was that it very nearly didn’t.

The right of self-defense it protects had been considered the primary law of nature since antiquity. Other governments may have forbidden their people to have weapons to protect themselves, but the English did not. Englishmen had a long-standing duty to be armed to keep the peace and, beginning with the English Bill of Rights of 1689, that duty became a right.

Like other rights Americans derived from England, the original English right to have arms had restrictions — in this case religious and class limits, although these fell away by the early 19th century. In his classic work popular with the Founders, “Commentaries on the Laws of England,” William Blackstone referred to the right of having arms as a “natural right of resistance and self preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”

He insisted no government could take the right to self-defense away. In contrast to any limitations on the English right, the American Second Amendment assumed “the right of the people to keep and bear arms” and decreed it “not be infringed.”

For most of its history, the Second Amendment was understood to confer an individual right, notwithstanding hundreds of various regulations. But in the 1960s, widespread riots and three political assassinations led to demands for stricter gun controls. Campaigns began for onerous restrictions on private ownership of firearms, including total bans.

Along with these, came a debate over the core meaning of the Second Amendment. The gist was that Americans had been wrong to believe the Second Amendment guaranteed them an individual right. The words of the amendment were parsed to disabuse them of that idea. Rather than the “well-regulated” militia as a reason for general ownership of weapons, it was argued that the amendment merely ensured that states have a militia and that membership in the militia, today’s National Guard, constituted the only right to be armed.

To advance this hypothesis, the amendment was interpreted as exclusively military. Unlike reference to “the people” in the First and Fourth Amendments protecting individual rights, we were told that in the Second Amendment “the right of the people” merely intended a “collective” right.

“Arms” meant only military weapons, “to bear” meant carrying weapons in a military force. “Keep” was ignored.

There was even the claim that if an individual right were intended, it only protected 18th century weapons.

Those opposed to the individual right interpretation even claimed the individual right was a brand new idea. Laurence Tribe, in the 1979 edition of his popular textbook, “American Constitutional Law,” relegated the Second Amendment to a footnote. A generation of law students were taught accordingly.

In 2008, the Supreme Court acted.

In the case of District of Columbia v. Heller, the Court examined the meaning of the Second Amendment for the first time. The justices overturned Washington, D.C.’s ban on residents keeping handguns in their homes, affirming the individual’s right to keep and bear those weapons in common use for self-defense and other lawful purposes.

Two years later, in McDonald v. City of Chicago, the Supreme Court incorporated the Second Amendment’s individual right throughout the country, finding it “a fundamental principle of American liberty.”

Despite these decisions, debate continues. Both landmark opinions affirming the right of Americans to keep and bear arms were passed by 5-4 majorities, with the dissenting justices asking that they be overturned. Further, some judges are choosing to ignore the high court.

Moves to protect and expand the right to be armed are, however, rapidly advancing in the states. Forty-four state constitutions include a right to be armed, and only nine of the 50 states have restrictive rules to prevent residents from carrying a concealed weapon, while 11 states permit any resident who lawfully owns a firearm to carry it concealed without further requirements.

Millions of Americans own and use firearms peacefully. Despite the recent uptick in gun violence in a few cities, the past 20 years have seen a dramatic drop in gun crime and gun homicides.

The Second Amendment affords Americans a right and ability to protect themselves and their loved ones. It places ultimate trust in the good sense of the American people, as the Founders intended.

Joyce Lee Malcolm, Ph.D., is Patrick Henry Professor of Constitutional Law and the Second Amendment at Antonin Scalia Law School. She has written extensively on the English and American right of the people to be armed.

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