On the Right to Bear Arms

Those of us who support a person's right to own guns may find it blasphemous, but it's true that a person can honestly disagree with us on the issue. Yes, it's possible for someone to want to ban private gun ownership in the United States, and be honest about it. The problem, however, comes from the majority of people who want to ban guns who either ignore or lie about the Second Amendment which guarantees Americans the right to bear arms.

The amendment reads: "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."

The argument may go that the right to bear arms only applies in regards to the state militias which are now defunct. Thus, the right to bear arms, tied to the state militias, no longer exists. However, the amendment says nothing of the sort. The amendment says two things: 1. A militia is necessary for the freedom of a State, and, 2. the government may not infringe on the right of the people to own guns. The former statement is clearly dependent on the latter (How could an unarmed militia defend the freedom of a State?), but there is no indication that the latter is dependent on the former. Nowhere does it say that this right "shall not be infringed, unless..."

Others may simply look to the ramblings of the Supreme Court as George Skelton of the Los Angeles Times does in an op-ed on the Orlando shooting and gun control.

A 2nd Amendment violation? Nonsense.

None other than the late conservative hero, U.S. Supreme Court Justice Antonin Scalia, put it this way in a 2008 opinion affirming the right of individuals to own firearms:

“The right secured by the Second Amendment is not unlimited.... The right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

There is no constitutional right to tote around a military-style assault weapon, and courts have ruled so.

Skelton is very cleverly invoking Scalia to throw in the faces of conservatives who generally hold him in high regard, but I am fortunately not afflicted by this disorder. As I've pointed out previously, Scalia's supposed deference to the "original intent" of the Constitution was more bluster than fact. Later in the opinion that Skelton quotes, Scalia states, "For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues." So in defending his statement that the right to bear arms is not unlimited in the Constitution, Scalia does not cite the Constitution itself, but the Supreme Court's previous opinions.

The challenge then is for Skelton, who is clearly taking up Scalia's cause, to provide any kind of evidence that the Constitution places a limit on what type of guns that citizens of the United States may own. Skelton will have to actually quote from the text of the Constitution itself, the Constitutional Convention where the Constitution was drawn up, or any of the State ratifying conventions where the Constitution was ratified. I'm afraid that an opinion of the Supreme Court which is itself not based on any of the sources mentioned above is not going to cut it.

The problem for Skelton is that no such limitations on the right to bear arms were ever agreed to at the Constitutional Convention, included in the text of the Constitution, or ratified by the States when they adopted the Constitution. In other words, any limitation on the right to bear arms being constitutional was simply invented out of thin air after the Constitution was ratified with no actual change to the Constitution. And since a compact cannot change its meaning after having been ratified without any of the parties to that compact agreeing to the change in the prescribed manner within the compact, we have to conclude that Skelton is completely delusional.

However, let's propose a scenario where the Second Amendment to the Constitution doesn't exist and the right to bear arms is not explicitly guaranteed. Skelton would still not only look in vain for any limitations on the right to bear arms being agreed to at the Constitutional Convention or state ratifying conventions, but he would also by stymied by the Ninth Amendment. The Ninth Amendment states, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In other words, just because, in our hypothetical scenario, the right to bear arms is not explicitly stated, it does not mean that it doesn't exist. In short, rights in the Constitution do not have to be explicit, but limitations on the rights of the people do have to be explicit.

So what argument might an honest advocate of gun control put forward? Quite simple, they would have to advocate a constitutional amendment not only repealing the Second Amendment but outright banning the sale and ownership of firearms. The problem is that constitutional amendments are difficult to get passed, and it's much easier to simply lie about what the Constitution says than to amend it.