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Yes, the Second Amendment Guarantees an Individual Right to Bear Arms

By Pierre Atlas

On March 9, the Circuit Court of Appeals for the District of Columbia issued a groundbreaking ruling. It declared in a 2-1 decision that the Washington, D.C. ban on handgun possession in private homes, in effect since 1976, is unconstitutional. The court reached this conclusion after stating unequivocally that the Second Amendment's right to keep and bear arms applies to individuals and not just "the militia."

It is quite likely that this ruling will be appealed to Supreme Court, which hasn't offered an interpretation of the Second Amendment since 1939.

Appalled by the District Court ruling, the Washington Post editorialized that it will "give a new and dangerous meaning to the Second Amendment" that, if applied nationally, could imperil "every gun control law on the books."

The Post accused the National Rifle Association and the Bush administration's Justice Department of trying "to broadly reinterpret the Constitution so as to give individuals Second Amendment rights."

But actually, to argue that the Second Amendment does not apply to individuals is a reinterpretation of the Constitution and the original intent of the founders.

One of the major concerns of the anti-Federalists during the debate over the Constitution in 1787 was the fact that the new document lacked a Bill of Rights. In order to get the Constitution ratified, the framers promised to pass a Bill of Rights during the First Congress as amendments to the Constitution. The Second Amendment with its right to keep and bear arms became part of that package.

What was the original intent of the Second Amendment? Was the right to bear arms a collective right for militias, or an individual right for all citizens? The "Dissent of the Pennsylvania Minority," from the debates of 1787, is telling. This document speaks of the importance of amendments protecting freedom of speech and the press, the right of conscience, the right of habeas corpus and other fundamental freedoms we now take for granted in the Bill of Rights.

This is what the Pennsylvanians said about the right to bear arms in 1787: "That the people have a right to bear arms for the defence of themselves and their own state and the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals."

Is the right to bear arms a collective right or an individual right? The answer, according to this document and the writings of others at the time of the founding, is both.

Many gun control advocates today argue that the use of the term "the people" means that the right to keep and bear arms is a collective right exclusively. This is utterly illogical. In the First Amendment, the rights of "the people" to peaceably assemble and to petition government do not require membership in a group in order to be exercised. To say that the drafters of the Bill of Rights had two distinct meanings for "the people" in the First and Second Amendments strains credulity.

The understanding that the Second Amendment applied to individual citizens was reiterated during the 1866 Congressional debates over the Freedmen's Bureau Bill and the proposed Fourteenth Amendment.

The Radical Republicans wanted to apply all the Bill of Rights protections to the recently freed former slaves in the South, America's newest citizens. The "freedmen," as they were called, needed the right to bear arms in particular in order to defend themselves against the white night-riders who were terrorizing the black population.

The statement of February 28, 1866 by Nevada Senator James Nye was fairly typical: "As citizens of the United States they have equal right to protection, and to keep and bear arms for self-defense."

The recent federal court ruling is not a radical reinterpretation of the Constitution and it should be upheld by the Supreme Court if appealed. It is about time we put to rest the canard that the right to keep and bear arms is not an individual right.

But that said, no right is absolute. All rights have limitations and come with responsibilities. Freedom of speech does not include the right to falsely cry "fire" in a crowded theater. Freedom of worship does not include the right to polygamy or human sacrifice. There is always tension between individual liberty and "the public good." A primary purpose of government in a democracy is to seek the best balance between the two. The founders believed this as strongly as they believed in protecting individual liberty itself.

Gun control advocates need to finally accept the fact that, yes, Americans do have the Constitutional right to keep and bear arms. And gun rights advocates need to accept the fact that those rights are not unlimited--something the Pennsylvania anti-Federalists understood 220 years ago.

Pierre M. Atlas is an assistant professor of political science and director of the Franciscan Center for Global Studies at Marian College.

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