X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The National Rifle Association and other gun owners have argued for decades that the “right to bear arms” contained in the Second Amendment is an independent right and protects all citizens who wish to own a firearm (including a handgun) and keep it in their homes. Up until this year, the lower federal courts have consistently rejected that argument. But recently in Parker v. District of Columbia , the U.S. Circuit Court of Appeals for the District of Columbia struck down a district law that prohibited the possession of a handgun in the home without a license. The court held that the law violated the Second Amendment. In November, the U.S. Supreme Court granted review of that case and will presumably settle the debate one way or the other. Oral argument in District of Columbia v. Heller is scheduled for March 18. The exact language of the Second Amendment contains some ambiguous words: “A well regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Before Heller, the lower federal courts have consistently accepted the argument that the right to bear arms was a collective right, tied to service in a militia. That is, the people have the right to bear arms only as an incident to their service in a militia. The historical record of the clause bears out this analysis. One of the chief concerns of the framers of the Constitution was their fear that the new national government would have its own permanent army � a “standing army” � that could endanger the rights of the people, much as George III had done with British troops. James Madison had argued during the Philadelphia Convention: “[A]s the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good Militia.” The Constitution provided for the forming and training of “the militia” on a uniform basis and calling it into federal service to “execute the Laws of the Union, suppress Insurrections and repel Invasions.” Focus on conscientious objectors Since the Constitution had been ratified only on the implied promise that a federal Bill of Rights would be promptly appended to it, Madison moved quickly in Congress (in the summer of 1789) to introduce a series of proposed amendments to protect individual rights. One of his proposals became the Second Amendment. But the focus of Madison’s first attempt was on the problem of conscientious objectors from militia service. His original proposal read: “The right of the people to keep and bear arms shall not be infringed; a well armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” The proposed Bill of Rights was referred to a Select Committee of Eleven, which suggested even more generous protection for objectors, rejecting the furnishing of a substitute or any equivalent service, which some states had required. It also reversed the two clauses, placing the “right to bear arms” in second place, as dependent on militia service: “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.” Debate on the provision took place in the House on Aug. 17, 1789. There were various objections raised to the conscientious objector proposal. Some representatives wished to ensure that some equivalent service or payment be required. The report of the debate noted that James Jackson of Georgia “did not expect that all of the people of the United States would turn Quakers or Moravians; consequently one part would have to defend the other in case of invasion. Now, this, in his opinion, was unjust, unless the Constitution secured an equivalent; for this reason, he moved to amend the clause, by inserting at the end of it, ‘upon paying an equivalent, to be established by law.’ “ Roger Sherman of Connecticut objected. He argued that “those religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent.” He pointed out that the states would have the primary responsibility for organizing the militia and presumably would grant generous exemptions as they had in the past. This argument was picked up by Egbert Benson of New York, who suggested that the entire conscientious objection clause be eliminated for that reason. “I have no reason to believe but the [state] Legislature will always possess humanity enough to indulge this class of citizens in a matter they are so desirous of; but they ought to be left to their discretion.” The proposal to exclude the clause on conscientious objection was defeated, 24-22. However, in later debate in the Senate, that clause was eliminated, and it disappeared from the historical record. So what does this debate show? First, Congress reversed Madison’s original proposal and placed the “right to bear arms” as secondary to militia service. Second, the focus of all the framers was on establishing a “well-regulated Militia” as a possible counterweight to the central government’s standing army. Third, the dispute about conscientious objection showed that the focus throughout the debate was on militia service, not any underlying, independent right for all citizens to own a weapon. Only those citizens who could be called into militia service would have the right to keep a weapon handy. Presumably those justices who believe the Constitution should be interpreted in accordance with its original meaning will follow this reading and reject the claims of those who see an independent and freestanding right to own a firearm. Leon Friedman is a professor of constitutional law at Hofstra University School of Law.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.