Keeping and Bearing Arms: Much More Than a Constitutional Right

[1]  It is imperative when presenting an argument that you know, exactly, the premise upon which it rests.  It must be understood, “...the right of the people to keep and bear Arms...” does not derive from the Constitution or the Bill of Rights.  An examination of the entire Second Amendment will make it clear: "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."

[2]  The language of the Second Amendment clearly just refers to the “right of the people to keep and bear Arms”.  It does not define the right, but clearly recognized Klingfuss 250.jpgthe right as already existing at the time of the Bill of Rights (1791).  Indeed, it would appear, that the most important part of the Second Amendment was the prohibition, that the already pre-existing “right to keep and bear Arms”, was not to be infringed by the government.

 [3]  The right to keep and bear arms is a natural right that pre-dates the U.S. Constitution.  It is generally understood to have first been recognized as a legal right, to be protected as law, from the English Bill of Rights of 1689, which stated: "Protestants may have arms for their defense   suitable to their conditions and as allowed by law."

[4]  So it was, when the earliest English settlers came to colonize America, they brought with them the right to keep and bear arms.  In summarizing the role of the U.S. Constitution in 1825, it was noted that the Second Amendment was intended to be:

 . . .the duty of the state government is to adopt such regulations as will tend to make good soldiers with the least interruptions of the o​rdinary and useful occupations of civil life.  In this all the Union has a strong and visible ​interest.[1]

[5]  Mr. Rawle further noted that there was nothing in the Constitution that would allow Congress to disarm the people, that any such attempt would be under some artifice or pretense of a State government.  And, in either case, the remedy was to seek redress through the Second Amendment as a restraint on both Congress and the States.[2]

[6]  Even in the first few decades the lines were drawn and the Second Amendment was understood to be the source of relief or redress for any infringement of the right to keep and bear arms, whether that infringement came from Congress (the federal government) or the States. 

[7]  It was the District of Columbia that made just such a law when it made the possession of handguns subject to strict license requirements and even when such guns were kept in homes they had to be disassembled or bound by a trigger lock.  Such requirements essentially prevented functional firearms from being possessed even at your own home if you lived in the District of Columbia.

[8]  A police officer wanted to keep his loaded service revolver and have it available to him at his home for self-defense.  When this issue got before the U.S. Supreme Court, it was decided that the Second Amendment applied to individuals and was not limited to individuals in the militia.  District of Columbia v. Heller, 554 U.S. 570 (2008).  The U.S. Supreme Court clarified another part of the Second Amendment, and specifically noted that historically the term “keep arms” means to “have weapons” in modern context and language.

[9]  The type of weapons that an individual can keep or have in their possession is to be interpreted as those “in common use at the time” or are prohibited as being “dangerous or unusual weapons”.    In the process of identifying the Second Amendment as protecting an ‘individual’ right to keep and bear arms, separate and apart from service in a militia, the U.S. Supreme Court also noted that any “statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional.”   While the language the Supreme Court quoted was in the style and spelling of the 1840s case from which it came, the result was the same.  Any regulation, such as having weapons only disassembled or bound by a trigger lock was an infringement on the “right to keep and bear Arms.”  While there may be problems across the country with handgun violence, the “enshrinement of constitutional rights necessarily takes certain policy choices off the table.”   Such prohibited policies include the absolute prohibition of handguns held and used for self-defense in the home.

[10]  Because the District of Columbia is governed by and under the jurisdiction of the federal government, U.S. Constitution Section 8, clause 17, it was believed and argued that the Heller opinion only applied to the federal government laws and regulations.  Consequently, several municipalities in Illinois including Chicago, passed laws essentially banning handgun possession by almost all private citizens.

[11]  As Mr. Rawle had projected in his treatise of 1825, A View of the Constitution of the United States, those individuals sought redress and remedy in the Courts for what they perceived as an infringement of their natural right to keep and bear arms in their homes, as recognized in the Second Amendment and as defined and clarified in the Heller decision of 2008. 

[12]  The argument devolved to the point that the Cities argued that the Second Amendment was only applicable to the federal government.  The petitioners seeking to enforce their ancient and natural right to keep and bear arms sought to have the Second Amendment prohibition against infringement applied to the city ordinances through the Fourteenth Amendment of the U.S. Constitution.

[13]  The issue was clearly laid out before the U.S. Supreme Court – if the right to be enforced against the States is fundamental to the Nation's scheme of ordered liberty, or, whether it is deeply rooted in this Nation's history and tradition, then it is also applicable to the States through the Fourteenth Amendment.[3]

[14] Interestingly, the U.S. Supreme Court in arriving at that decision condensed and clearly reiterated the premise of their Heller opinion of two years earlier.

 Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is “the central component” of the Second Amendment right.  Explaining that “the need for defense of self, family, and property is most acute” in the home, the Court found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one's home and family,”  It thus concluded that citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.”  Heller also clarifies that this right is “deeply rooted in this Nation's history and traditions,”  Heller explored the right's origins in English law and noted the esteem with which the right was regarded during the colonial era and at the time of the ratification of the Bill of Rights. This is powerful evidence that the right was regarded as fundamental in the sense relevant here. That understanding persisted in the years immediately following the Bill of Rights' ratification and is confirmed by the state constitutions of that era, which protected the right to keep and bear arms.[4]

 [15]  The right, described and referenced in the Second Amendment, was a pre-existing right that shall not be infringed.  That right was not granted by the Constitution nor is that right dependent upon the Constitution for its existence.  The defenders of that pre-existing natural right are to seek remedy and redress in the Courts if there is, as the Second Amendment describes it, – if it is infringed.

 [16]  As the opinions in both the Heller and McDonald cases note the right is not an unlimited right.  Even looking to the English common law from which it derived stated “Protestants may have arms for their defense suitable to their conditions and as allowed by law.”[5]  Even as first written down it had limitations “as allowed by law.”  The U.S. Supreme Court specifically noted that prohibitions against concealed weapons were lawful under the Second Amendment as are laws prohibiting the possession of firearms by felons or the mentally ill.  Law prohibits the carrying of firearms in sensitive places such as schools and government buildings, or imposing conditions and qualifications on the commercial sale of arms.  Those prohibitions are presumptively lawful and the list is not exhaustive.  So, there can be limitations on the “right to keep and bear Arms.”​

[17] ​The argument for the “...right to keep and bear Arms” is stronger when not coupled to the Constitution or the Bill of Rights, for the right is more ancient and more organic than our Constitution.  Any argument regarding the “right to keep and bear Arms” should be presented in carefully documented historical perspective as closely aligned to the prevailing arguments presented in Heller and McDonald.  If in the unfolding of the discussion it is point out asserted the “...right to keep and bear Arms,” is not a Constitutional right, be prepared to agree and bring forth the point that the right pre-dates the Constitution and the Bill of Rights and is more basic as fundamental to the Nation's scheme of ordered liberty, and deeply rooted in this Nation's history and tradition.

Jeffrey A. Klingfuss is a Special Assistant Attorney General for the State of Mississippi in the Criminal Appeals Division.  In addition he is also an adjunct Professor of Law at Mississippi College School of Law, in Jackson, Mississippi.  On Sunday’s he is the church organist for New Hope Lutheran Church and he also plays organ for Kosciusko African Methodist Episcopal Church.

[1] Rawle, William, A View of the Constitution of the United States, 122 (1825).

[2] Ibid.

[3] McDonald v. City of Chicago, (U.S. 2010)(decided June 28, 2010).

[4] McDonald v. City of Chicago, Ill., 130 S.C. 3020, 3023 (U.S. 2010)(internal citations omitted).

[5] 3 Eng. Stat.At Large 441 (1689). 

© May 2014
Journal of Lutheran Ethics
Volume 14, Issue 5