The Second Amendment Is About an Individual Right, Not a Collective One

The Second Amendment to the Constitution is clearly about the right of individuals to own and carry guns, George Mason University law Professor Nelson Lund said February 6 in a talk sponsored by the Federalist Society. The claim that the Amendment's language is limited to maintaining organized militias only developed in the 20th century, Lund said.

"The Second Amendment is now among the most misunderstood provisions of the Constitution," he said. "There are two schools of interpretation now: one that it's about the right of individuals and the other that it's about the right of a state to have a militia. Last year the U.S. Court of Appeals for the Fifth Circuit became the first court to adopt the correct view: it's an individual right." The operative phrase in the Amendment is "the right of the people to keep and bear arms shall not be infringed," Lund said. The prefatory phrase about militias is "an ablative absolute clause giving context for the main clause," and is illuminating in that function. "The Second Amendment does not say it protects the right of state militias to bear arms," he noted.

"No one thinks that when the First Amendment speaks about the right of the people to petition the government that it means only to protect the rights of lobbyists for state governments. It means individuals. What the Second Amendment is saying is you can't disarm the people under the pretext of regulating the militia."

The founding fathers had a strong fear of standing armies in peacetime but also knew from the Revolutionary War that militias alone would not suffice to defend the nation, Lund said. A militia was formed by temporarily mobilizing citizens; an army, especially as they were known in Europe then, was typically made of career soldiers. An army was necessary for defending the country, the founders concluded.

Meanwhile, anti-federalists had an abiding suspicion of ruling tyranny such as they saw in Europe, where citizens could not own guns, and therefore insisted that Americans not be disarmed. The Second Amendment's purpose is to give citizens a way to defend themselves, not only from potential tyrants but also from threats (such as violent criminals) that the government leaves unchecked, Lund said. Part of the modern problem of interpretation comes from the fact that military weapons are now much more sophisticated than personal firearms.

"Military technology has greatly reduced the ability of an armed citizenry to resist federal tyranny," he said. At the time the Amendment was adopted there was no difference between muskets used by soldiers and those kept in households. A very small number of people remain alarmed about the possibility that the federal government will turn totalitarian, Lund said, but many people still distrust the government's ability to protect them from crime and therefore want a means of self-defense. He cited data compiled by John R. Lott Jr., author of More Guns, Less Crime: Understanding Crime and Gun Control Laws, which shows that the liberalization of concealed carry laws has the effect of reducing crime rather than increasing it because criminals are deterred from attacking people when they risk facing a gun. He cited the recent shootings at Appalachian Law School in Grundy in which the killer dropped his gun when confronted by another student with a gun, noting ruefully that neither the Washington Post nor New York Times reporting included this detail about how the killer surrendered. Lund claimed that there are nearly 2 million cases of guns being used in self-defense every year but that instances are largely unreported. He summed up the general public view as "that the Second Amendment is good and the gun control laws we have do not really infringe on it."

The real question now, Lund said was whether the law would continue to develop in the direction taken by the Fifth Circuit.

Asked to give a response to Lund, Professor Richard Bonnie said Lund may be right in his view of the Amendment as securing people's rights individually, but if so then certain public safety questions are pertinent, among them the licensing of gun owners and the registration of their guns (as with cars), the personalization of guns through technology so that only their owners may use them, gun security in homes, and the control of the secondary market for guns, such as gun shows.

He also called for more scientific study of available data, noting that Lott's conclusions have been contested, as have figures on defensive gun use. He noted that 30,000 Americans commit suicide every year with the majority using guns, acts that might be averted but for the finality of the trigger.

Lund answered that Lott has made all his copious data available and that nobody has yet pointed out any significant flaws in his analysis.
In response to a questioner who noted the apparently absolute prohibition in the text of the Second Amendment, Lund said that a balancing test for the gun right will have to be established because "no court will ever find that you have a personal right to a 'suitcase' nuclear bomb or a stinger missile," even though both are "arms" small enough to carried by an individual.