Myth No. 15: Gun ownership is not a constitutional right

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.

Note that the right to bear arms is not granted by the amendment. Instead its existence is presumed, probably as part of the general right of self-defense. Note also that since the founding fathers made this right second on a list of ten, they must have believed that it was especially important. [See the sidebar on what the founding fathers thought.]

Some people argue that the right to bear arms is conditional upon the need to have an armed citizenry as part of our national defense. Thus, if the need were not there, the founding fathers would not have asserted the right. In the modern era, supposedly the need is not there. Does this mean there is no longer any constitutional right? At the time the Constitution was written, "militia" had two meanings. The "select militia" was the forerunner of our modern national guard. The "general militia" referred to all able-bodied men with arms. Both are distinct from the "army."89

The founding fathers strongly believed in the right of ordinary " nonarmy " citizens to bear arms, and not just for defense against foreigners. In general, people feared the new federal government and its standing army as much as they feared foreign invaders. As James Madison explained in the Federalist Papers, the primary check on government tyranny and an abusive army was citizens with their own arms.90 As Tench Cox, a friend of Madison, wrote at the time the Constitution was being adopted:91

As civil rulers not having their duty to the people duly before them, may attempt to tyrannize and as the military force which must be occasionally raised to defend our country might convert their power to the injury of their fellow citizens, the people are confirmed by the next article [2nd Amendment] in their right to keep and bear their private arms. The founders' purpose was to constitutionalize the right to arms, which they knew from English common law and Enlightenment political philosophy. Militia laws blended three related purposes: opposition to standing armies, dependence on militias and support of the armed citizen and his willingness to defend himself and his free society. Standing armies were considered a threat to the development of the virtuous, self-reliant citizen on whom the republic's vitality rested.

"The founders wanted citizens to be able to defend themselves against tyranny by their own government."

All subsequent 18th- and 19th-century legal interpretation understood the Second Amendment right to arms as a guaranteed constitutional right. It was among Blackstone's five "absolute rights of individuals" at common law. The "right of the people to keep and bear arms" was self-defining to the founders. They felt that clarification was unnecessary. Familiar to them in Colonial law, derived from the earliest known English codes and its Greek and Roman antecedents, proclaimed by every commentator known to them, the right to bear private arms not only was hailed as fundamental to republican institutions and popular liberty but was viewed as inherent in the natural law right of self-defense.

It is also worth noting that the Revolutionary War was sparked by the British attempt to confiscate the patriots' privately owned arms at Lexington and Concord. Thus the notion that the founding fathers, or for that matter anyone alive at the time, thought that the government had a Constitutional right to disarm peaceable citizens is ludicrous.

Conclusion

"Gun control laws might be accurately called victim disarmament laws."

Armed citizens pose a risk of punishment to criminals - perhaps more so than does the criminal justice system. Gun ownership may exert as much deterrent effect on violent crime and burglary as the criminal justice system does. The battle over gun control is not about controlling inanimate objects; it is about controlling people. To extend gun controls would make the nation better for criminals and worse for the rest of us.

NOTE: Nothing written here should be construed as necessarily reflecting the views of the National Center for Policy Analysis or as an attempt to aid or hinder the passage of any bill before Congress.

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© 1996 NCPA