The right to bear arms has constitutional limits

May 07, 1999|By Linda R. Monk

ANOTHER springtime mass murder, another ritual invocation of the Second Amendment. The problem: Few conservatives or liberals really understand what it means.

"The right of the people to keep and bear arms," as specified in the Second Amendment, is not so simple as limiting firearms solely to the National Guard, which some liberals might choose, or allowing unlimited ownership of guns, as some conservatives would prefer.

Even the president of the National Rifle Association, Charlton Heston, was forced to curtail the group's annual meeting in Denver as a result of the shootings in Littleton. The gun lobby is now facing an anti-violence movement akin to the anti-smoking campaign that finally brought down Big Tobacco. But the NRA and its cohorts are not without valid constitutional arguments.

Most gun control advocates read the Second Amendment's opening phrase -- "A well-regulated militia, being necessary to the security of a free state" -- as restricting gun ownership to the modern-day militia, the National Guard.

Collective right

They believe that the Second Amendment protects a collective right to bear arms for national defense, not an individual right to bear arms for self-defense. However, the legislative history of the amendment indicates otherwise.

The original version of the Second Amendment, as reported by a committee of the House of Representatives in 1789, stated that the militia was "composed of the body of the people". This phrasing represented the contemporary understanding of Americans during the colonial period, when free adult males could be fined if they did not possess arms and ammunition.

George Mason, author of the Virginia Declaration of Rights, also argued that the militia consisted of "the whole people."

That a formal National Guard has today replaced the defense function of a colonial militia does not dispose of the constitutional issue. The plain language of the Second Amendment maintains that bearing arms is "the right of the people" -- not the states, not the government, but the people.

Similar phrasing is used in the First, Fourth and Ninth Amendments. One cannot deny "the people" the right to bear arms without also endangering freedom of speech and protection from illegal searches and seizures.

Indeed, law professor Sanford Levinson referred to "The Embarrassing Second Amendment" in his 1989 Yale Law Journal article of the same name, which is considered the definitive examination of the subject.

Mr. Levinson pointed out that many liberals, himself included, tended to cavalierly dispense with the right to bear arms, a position unthinkable with any other civil liberty. Mr. Levinson arrived at the conclusion that history demanded a more consistent approach to all rights in the Bill of Rights, without ignoring the Second Amendment.

But acknowledging that the Second Amendment protects an individual right to bear arms does not end the constitutional argument, either. The right to bear arms should receive no less protection than others in the Bill of Rights, but it should receive no greater status, either. Every right has limitations.

Freedom of speech does not include pornography, defamation or incitement to riot. Freedom of religion protects beliefs, but not actions that harm other people. With guns, the danger to others is real and immediate, so the necessity for restrictions on the right to bear arms is obvious.

In fact, no federal court has ever struck down a gun control law based on the Second Amendment. In 1997, the Supreme Court declared the Brady Bill -- which required local law enforcement officers to conduct background checks on handgun purchasers -- unconstitutional, but on federalism grounds, not on the Second Amendment.

Moreover, the Second Amendment only restricts the federal government. That is because, unlike most other provisions in the Bill of Rights, the Second Amendment has not been incorporated by the Supreme Court through the Fourteenth Amendment to apply to state and local governments. So the Second Amendment presents no impediment to gun control measures enacted by state and local governments.

Handgun limits

A case from the early 1980s re-established this principle. The village of Morton Grove, Ill., banned the possession of handguns in the home, the first town in America to do so. Handguns for recreational use had to be stored at gun clubs; all others were forbidden in the home, with exceptions for police officers, members of the armed forces and security guards. A federal appeals court upheld the law, and the Supreme Court let the decision stand.

In "The Federalist Papers," James Madison wrote about "the advantage of being armed, which the Americans possess over the people of almost every other nation." But in recent springs, more and more Americans are questioning that advantage.

Linda R. Monk is the author of "The Bill of Rights: A User's Guide."

Pub Date: 5/07/99

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