Another mass shooting, this one even worse than the last. It may be too early to know for sure the motivation of Omar Mateen, who shot to death 49 people in an Orlando club in the early hours of Sunday morning.
But we can be certain of one thing: Once again, there will be an argument about the meaning of the Second Amendment.
“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.” That’s the wording of the amendment, adopted on December 15, 1791. Opponents of gun control insist that regulating guns would violate what they see as the amendment’s protection of the individual right to bear arms. Gun control proponents are equally fervent in interpreting the amendment as protecting only a communal right, not an individual right.
But is it possible that both sides in the gun control debate are only half correct?
The reality is that members of Congress who wrote the amendment weren’t thinking about the individual right to bear arms. They didn’t have to, because they already took it for granted.
Every record of the Congress that wrote the amendment and the state legislatures that voted for it shows that their discussions were about the right of the people to maintain state militias. Many Americans were suspicious of a centralized government, worried that it would overstep its constitutional boundaries and become as tyrannical as they believed the English monarchy had been.
That is why the constitutional convention rejected the idea of a “standing,” or permanently funded, army. National security would best be protected by militias under the control of the individual states, or by a temporary army. So the ability of the people to assert themselves collectively to safeguard their liberties was foremost in the minds of the members of Congress.
At the same time, many Congressmen owned guns, as did many other Americans, and assumed they had a right to do so. And for white men, it was not just a right: they had a legal obligation to possess guns, so they could be used when the militia called upon them to defend the public. They also used weapons for hunting and for self-defense.
But they weren’t free to use them entirely as they might have liked.
That’s the lesson of state and municipal regulations in existence when the amendment was written in 1789 and ratified by the states in 1791. A 1780 Massachusetts statute, for example, was specifically designed to “deter…the Inhabitants thereof from keeping certain Quantities of Power in Houses and War-Houses.”
Three years later, Massachusetts passed another law setting out punishments for keeping a loaded firearm in “any Dwelling-House, Stable, Barn, Out-house, Ware-house, Store, Shop, or other Building.” Any such weapon could be seized by the authorities, because the state was concerned that loaded weapons could constitute a danger to firefighters.
Meanwhile, any New York City resident who fired a gun during the three days surrounding New Year’s Day could be fined 20 shillings. It was also illegal not only in New York, but in Boston and Philadelphia — then the three largest cities in the country — to fire a gun within city limits at any time. People in Rhode Island were prohibited from using “any Gun or Pistol … in the Streets of any of the Towns of this Government, or in any Tavern of the same, after dark, on any Night whatsoever.”
And many American cities outlawed “affrighting,” or the act of carrying a weapon in a manner that was frightening to others. Virginia and other Southern jurisdictions prohibited slaves and free blacks from carrying weapons at all.
Fast forward to 2008, and the late Supreme Court Justice Antonin Scalia referred to the long history of gun control in District of Columbia v. Heller, the case in which the Supreme Court declared that the amendment established an individual right to bear arms.
Justice Scalia noted that when the amendment was adopted, many cities prohibited “the carrying of ‘dangerous and unusual weapons.'” He added that there were “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” and that the court’s decision was in no way meant to prohibit such laws in the United States of the 21st century. In addition, Justice Scalia acknowledged “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.'”
“Like most rights, the right secured by the Second Amendment is not unlimited,” he wrote.
So it seems clear that the framers of the Second Amendment believed that there was an individual right to bear arms — and that the right could legitimately be regulated.
But if not in the Second Amendment, where, in the Constitution, can protection of that right be found?
The Fifth Amendment was approved by the same members of Congress who voted for the Second Amendment. It forbids the federal government from interfering with anyone’s “life, liberty or property without due process of law.” The government couldn’t take away a person’s house, or horse, or other possessions except through proper legal processes. And guns were property.
When it was adopted, the Fifth Amendment was a limitation only on the federal government, not the states and municipalities — although the 14th Amendment subsequently extended the prohibition to them as well. But its wording makes two things clear. The first is that the framers believed property could not be taken away without due process of law. The second is that they also believed that, with due process, property could be regulated or taken away entirely.
Clearly, the right to bear arms goes back to the earliest days of the United States. But so, too, does the power of legislatures to regulate it in the name of public safety.