There are two truths about the right to bear arms that cannot seriously be denied. But the two sides in the gun rights debate each adamantly opposes one of them.
First: The 2d Amendment is inextricably tied to armed forces of the individual States. Its purpose was to guarantee that the Federal government would not interfere with the States' having their own militaries. In short, to protect State security and sovereignty, not individual persons. The prefatory language--"A well-regulated militia being necessary to the security of a free State"--makes undeniably clear what was in mind.
Arguments to the contrary are ideologically driven. They are not disinterested understandings of the 2d Amendment. Whether pressed by conservatives, gun lovers, or the Supreme Court majority in its recent Heller and McDonald decisions, arguments denying that the 2d Amendment was intended to protect States--not individual rights--say more about politics and preferences than they do about historic reality.
Second: The Framers of the Constitution did, however, believe that individuals have a fundamental right to keep and bear arms. At the time of the Founding, it was well settled English law that all freeman were entitled to own and use arms for their individual defense. Indeed, this right of English freemen was considered among those absolute, natural rights against tyranny and oppression.
This individual right was not the focus of the 2d Amendment. But that's not because the Framers viewed the individual right as any lesser than the right of States to maintain their own militaries. As with most rights that were deemed fundamental, "natural" or "self-evident," the Framers did not think it necessary to guarantee them in the Bill of Rights.
The 9th Amendment was adopted to emphasize that point. The "enumeration of certain rights" was not to "deny or disparage others." And there is absolutely nothing in the history of the founding of the nation or the framing of the Constitution and Bill of Rights to suggest that the right of individuals--not just State militaries--to keep and bear arms was to be denied or disparaged. Arguments to the contrary by liberals, gun regulation lovers, or the Supreme Court dissenters in those recent decisions, again, say more about politics and preferences than about historic reality.
So what's the difference? We still end up with a Constitutional right of individuals--not just States--to have guns.
There is a big difference. This is not just an academic debate. It has very real practical ramifications. It affects how the Constitution is interpreted. It affects the "meaning" of the Constitution as authoritatively (if not necessarily correctly) determined by the Supreme Court. And consequently, it affects what rights we have as Americans and whether they will be recognized and enforced.
Consider the following:
The right to choose to have children?
The right to hug them, to raise them, to teach them right from wrong?
Sorry, not mentioned or suggested in the body of the Constitution or the Bill of Rights or in any other Amendment.
But Americans have always believed they had such rights and, indeed, the Supreme Court has recognized those rights as fundamental and Constitutionally protected against all but the most necessary government interference.
The right to choose a spouse (at least opposite sex at this point)?
To kiss one's spouse, to be intimate, to choose to use birth control or not?
The right to eat dinner with one's family?
The right to choose to live in the city, the suburbs, or the country?
The right to have a friend or join a social, educational, fitness or other group?
The right to take a walk, to sing in the shower, to read a book, to watch a favorite TV show?
Sorry, none of that is mentioned or suggested anywhere in the Constitution.
But again, Americans believe they are free to engage in any of those activities--unless, that is, the government has some pretty vital reason for restricting them. And, indeed, the Supreme Court over the years has agreed that we have such Constitutionally protected fundamental rights.
Of course, we could go on and on identifying basic rights which we as Americans take for granted as part of living in a free society. Rights which are nowhere mentioned or suggested in the Constitution. Rights about which we would be shocked if the Supreme Court ever held we didn't have.
The point of all this? In this discussion of the right to bear arms?
The Supreme Court's recent decisions about the right to bear arms reflect an extremely distorting ideologically-polarized debate. It's the same one that came to the fore in the Kagan confirmation hearings. It has been at the fore in all recent confirmation hearings.
At the Court, it's the conservative Justices ("strict construction," "plain meaning," "original intent," etc.) insisting that the 2d Amendment was intended to do something which it was not--i.e., to protect the right of individual persons to have guns wholly unattached to a State's armed force. It's the liberal Justices (expansive and vigorous protection of rights, overriding Constitutional ideals, fulfilling Constitutional principles, etc.) insisting that, because the 2d Amendment was not specifically intended to protect an individual right, there is no such right. Each side is arguing like the other usually does.
Likewise, at the hearings, it was conservative Senators insisting that the Constitution be interpreted strictly according to its text and intent, and that Justices not discover rights which are not plainly guaranteed in the Constitution. And yet, those same Senators insist that the Supreme Court was correct in finding an individual right to bear arms--completely untied to a State's military--in the 2d Amendment.
It was the liberal Senators who, as usual, were very supportive of the right to privacy, a woman's right to choose, gay and lesbian rights, federal powers over the economy and civil rights as part of the interstate commerce power, and other expansive interpretations of the Constitution. And yet, these same liberals strongly favor restrictions on individual gun rights, emphasizing the narrow intent and specific State-militia language of the 2d Amendment.
As for Elena Kagan, it would have been enlightening to get her take on the individual right to bear arms. Not only whether she knows what the Supreme Court held in its recent decisions. Not only whether she now believes that there is an individual right to bear arms unattached to a State's military--of course there is, the Court held so.
But how, in her view, Justices ought to go about determining whether such an individual right--or any right for that matter--is Constitutionally protected. Is it the specific text and intent of the 2d Amendment--or any other Amendment? Is it the grand or overriding principle reflected in that Amendment?
Or is it the grand and overriding principles and ideals of the American free society? Whether or not anchored in the specific language and intent of any particular Amendment or other Constitutional provision? As would be the case for the right to choose to have children, to hug them and raise them--and all those other rights mentioned above, as well as countless others. Rights which are nowhere mentioned or suggested in the Constitution, but are nonetheless essential to the American concept of a free society?
It would have been nice to get some discussion about that. Is there a right to hug and kiss and raise one's own children? And where is that in the Constitution? Ms. Kagan? Senators? Oh, that doesn't have to be in the Constitution? Oh! But I thought....
In the next post, we'll look further at this 2d Amendment/Individual gun right issue--and further at broader implications.