Does the Constitution guarantee the right to own a gun?

Many people believe that the Constitution does guarantee the right to own a gun, and they refer specifically to the Second Amendment, which states: "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."

There's been a lot talk especially among the Left that this amendment does not say that gun ownership is an individual right. The reason, they say, is that the Second Amendment refers specifically to a "well regulated militia," which at the time the Amendment was passed pertained to a citizen militia, which we no longer have. So the Second Amendment doesn't apply to gun ownership in modern America, and therefore does not guarantee the right of an individual citizen to own a firearm.

But let's look more closely at the Second Amendment, because its main clause refers to "the right of the people to keep and bear arms," stating categorically that they have that right. The necessity of a well-regulated militia was (at the time) simply one important reason as to why that right should be respected, without implying that there were not other reasons as well.

But let's assume, for the sake of argument, that the Left is correct and that the 2nd Amendment does not recognize an individual right of gun ownership. Does that mean that such a right does not legally exist, because there is no explicit article or amendment in the Constitution specifically authorizing it?

Well, consider: Does one have the right to own a baseball bat? Is that an individual right? Since there is nothing in the Constitution that specifically recognizes it, does it therefore follow that one doesn't have that right? How about the right to own a house, a car or a bike? Nothing in the Constitution about those either. Can the government, therefore, take away those rights as well? Of course, the answer is no, because there is another, oft neglected, amendment that does recognize these rights, namely the Ninth Amendment, which states, "The enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The Ninth Amendment covers gun ownership just as it covers bat ownership or car ownership, because, like the use of a bat or a car, the use of a gun does not necessarily violate anyone's rights. If it is used responsibly to hunt game, for target practice or for self-defense in an emergency, then its use is legitimate. Of course, it can be used illegitimately to assault people -- to violate their rights -- but then so can a bat or a car. And like a car, a gun can also be the cause of accidental death, yet the potential for accidents does not disqualify its legitimate use.

It is the Ninth Amendment that supports a right of gun ownership, just as it supports a right of bat ownership, house ownership, car ownership or bike ownership. The Second Amendment is unnecessary.

    Bill Whitle did a video where he got a linguists opinion on the second amendment. Conclusion: the mention of a well regulated militia does not mean that only militias have the right to bare arms. The ninth amendment would probably protect all of the rights in the bill of rights, but the founding fathers of the United States thought wisely that some rights ought to be given explicit mention. Its too bad that the ninth amendment has been forgotten because of the other amendments (and the ignorance of the courts).

    Would the United States constitution be better if the other amendments weren't passed? If all rights were protected by the ninth? That gives the courts a lot of power to create and destroy rights, unless they strictly followed common law traditions and objectivity (which they haven't done in the last 80+ years since the Lockner Era). In my view, the U.S. constitution would be better if more rights were explicitly protected (contract rights, property rights, etc.), rather than if the courts and the legislature were trusted to follow precedent and tradition.

Liam wrote, ". . . the mention of a well regulated militia does not mean that only militias have the right to bare arms."

That's certainly true.  Short-sleeved shirts and tank tops, which expose bare arms, are permissible attire even for private citizens! ;-)  As for the right to "bear" arms, if I'm not mistaken that would require a hunting license for which you'd already need the right to bear arms.  Okay, okay, I'll stop, as I'm sure the humor is becoming unbearable. :-P

The ninth amendment would probably protect all of the rights in the bill of rights, but the founding fathers of the United States thought wisely that some rights ought to be given explicit mention. Its too bad that the ninth amendment has been forgotten because of the other amendments (and the ignorance of the courts).

Would the United States constitution be better if the other amendments weren't passed? If all rights were protected by the ninth? That gives the courts a lot of power to create and destroy rights, unless they strictly followed common law traditions and objectivity (which they haven't done in the last 80+ years since the Lockner Era). In my view, the U.S. constitution would be better if more rights were explicitly protected (contract rights, property rights, etc.), rather than if the courts and the legislature were trusted to follow precedent and tradition.

Strictly speaking, if you start concretizing rights -- like the right to possess firearms, the right to start a business, etc. -- there's virtually no end to the list of rights that would have to be included, and it would suggest that if one or another were omitted, the omitted right wouldn't exist and could therefore be denied.  That's why I believe the founders felt it necessary to include the 9th Amendment.

  Bear vs Bare
----------------

You can use "bear" as a noun: (e.g., grizzly bear),
You can use "bear" as a verb: (e.g., He bears a great burden), 
    When it is a verb it is like 'to have,' or 'to carry,' or 'to suffer' something.
but "bear" is never used as an adjective.

----------

"Bare" is never a noun.
You can use "bare" as a verb: (e.g., He barred his soul.)   - To bare is to uncover or to expose.
You can use "bare" as an adjective, where it means minimum or stripped down or unclothed, as in: The bare facts, or a bare body.
-----------

from Amendment II of the Constitution:
... the right of the people to keep and bear arms... 

(Being used in this context as "to carry" except that when people "bear arms" it commonly carries an additional flavor: to stand proud with the arms they carry, or holding their guns as if determined to defend their position.)

Hi Liam,

I wasn't trying to be critical or to get all picky.   I never had any doubt about what you meant.

Ever since reading Ayn Rand's Introduction to Objectivist Epistemology I've become more and more fascinated with grammar (and word usage in general).  Then I started listening to the recorded lectures on Grammar by Leonard Peikoff - that just reinforced my interest.

Sometimes English usage is arbitrary and must be difficult for non-English speakers to learn, but other times there is a level of precision available that is a joy to contemplate.

Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom;

[...]

By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law;

By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law;

[...]

And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections...  asserting their ancient rights and liberties declare

[...]

That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

The English Bill of Rights of 1689.

http://avalon.law.yale.edu/17th_century/england.asp

Bill Dwyer wrote:

Many people believe that the Constitution does guarantee the right to own a gun, and they refer specifically to the Second Amendment, which states: "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."

 

There's been a lot talk especially among the Left that this amendment does not say that gun ownership is an individual right. The reason, they say, is that the Second Amendment refers specifically to a "well regulated militia," which at the time the Amendment was passed pertained to a citizen militia, which we no longer have. So the Second Amendment doesn't apply to gun ownership in modern America, and therefore does not guarantee the right of an individual citizen to own a firearm.

 

But let's look more closely at the Second Amendment, because its main clause refers to "the right of the people to keep and bear arms," stating categorically that they have that right. The necessity of a well-regulated militia was (at the time) simply one important reason as to why that right should be respected, without implying that there were not other reasons as well.

Bill's reasoning is spot-on.

Several additional points I'd like to make:

1. The amendment states: since a WRM is necessary to FSS, the ROTP to K&BA shall not be infringed. But because negating the antecedent does not logically negate the consequent, one cannot reason from this that if a WRM is *not* necessary to FSS, then the ROTP to K&BA *may* be infringed. (Of course, one shouldn't be surprised that liberals and other enemies of the Bill of Rights try to push their anti-self-defense agenda by trotting out one of the oldest fallacies in the book.)

2. The consequent clause explicitly refers to "the right of the people" to keep and bear arms. The antecedent clause simply states what the Framers thought was the most salient (or at least the consensus) reason why that right *should not be infringed.* Clearly, they saw it not as a government-created right, but a pre-existing, natural right of the people, just as much as free speech and press &c. - and that they were not *creating* those rights, but *assuring* the people that the federal government would not *infringe* those rights. This point should have been underscored in bold at the beginning of the Bill of Rights, instead of tucking it away in the 9th Amendment, where it was way too much like an afterthought.

3. As Bill and others have pointed out, there may well be (and in fact are) other still-operative reasons why that right *may not* be infringed, even though the Framers did not spell them out. But I think this misses an important point. Rights are not something that may be infringed for *any* reason, because by the very nature of human life, rights are necessary survival conditions for living in society. I'm not sure the Framers fully understood this point either (though Jefferson did refer to rights as inalienable), but in any case, it was not made sufficiently clear in the Bill of Rights.

REB

(Edited by Roger Bissell on 12/17, 11:24am)

Thanks, Jules.

I like Canada, impending third-world status and all. Especially Vancouver and its environs. Lovely place. And Gaspe Peninsula (for sightseeing purposes, at least).

Besides, I'm not sure the United Socialist States of America is far behind you. :-(  (My emoticon button won't work. :-(

REB

Our dollar just tanked down to 68.8 USD.  Weeee $8.00 broccoli is coming.

Yup our fearless leaders are making it even worse...