Opinion: Why the right to bear arms is an individual right

By Jarrett Stepman | The Daily Signal

Does the Second Amendment protect an individual right to gun ownership, or is it a collective right that can and should be heavily regulated by the state?

In light of recent debates about mass shootings and gun control, that argument — which has been at the heart of many conversations about gun control — was fleshed out by Sens. Ted Cruz, R-Texas, and Chris Murphy, D-Conn.

The debate was sparked by actress and liberal activist Alyssa Milano, who initially asked in a Sept. 1 Twitter post where the right to bear arms is in the Bible. Cruz then responded with a series of tweets of his own.

Murphy, a leading proponent of gun control, who is writing a book about firearms and violence in America, then stepped into the argument with his own series of tweets.

What a strange world we live in, when elected leaders and celebrities have serious — or in some cases, unserious — debates on important topics such as the nature of rights on Twitter.

But I digress.

Murphy made some obvious missteps here. Clearly, there’s no reason James Madison would have included writings about the Second Amendment in his Constitutional Convention notes, since the Second Amendment was part of the Bill of Rights, passed after the Constitution was ratified.

Murphy later acknowledged this.

He also comes to the mistaken and baseless conclusion that the right to bear arms must be linked to militias, based on the latter half of the amendment, which says, “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.”

Murphy’s arguments were attacked by National Review writer Charles Cooke, who addressed the Connecticut lawmaker’s arguments on Twitter, then on columnist Jonah Goldberg’s podcast, “The Remnant.”

Cooke noted that Vermont’s Constitution states, “the people have a right to bear arms for the defence of themselves and the State,” clearly defining bearing arms as a right with the means to the end of defending oneself and the community.

As an aside, Cooke noted that the Vermont Constitution — established in 1793 — begins by abolishing slavery in the state, throwing a wrench in the argument of those who contend that the right to bear arms was created to suppress slave uprisings.

Cooke then delivered a hilarious coup de grace by explaining that the Connecticut Constitution protects the individual right to bear arms, but never mentions militias.

It says, simply, “Every citizen has a right to bear arms in defense of himself and the state.”

Oops. It seems clear that the Second Amendment is about more than just protecting the existence of militias.

If it isn’t already clear, the Founding Fathers didn’t just want to protect the right to bear arms as a means to counter foreign enemies, but as an essential tool — in a worst-case scenario — to oppose a possible tyrannical domestic government.

Even the reference to “militia,” as Murphy and those on the left like to harp on as essential to understanding the Second Amendment, was viewed as in opposition to government power.

Certainly, there are many reasons the Founders would cite as to why the right to bear arms is essential to a free people, but it’s off-base to deny that it had a clear grounding in the well-established right to self-defense.

The Founders, some with particular vehemence, saw the right to bear arms as absolutely essential to the preservation of liberty, which is why it ended up not only in the Constitution, but in most of the early state constitutions as well.

As George Mason, a leading Anti-Federalist, said at the Virginia ratifying convention, disarming the people is “the most effectual way to enslave them.”

Mason notably walked out of the Constitutional Convention because he believed that it did not contain enough protections for individual rights. He insisted on a Bill of Rights as necessary.

The argument for leaving out those protections was not at all based on the idea that individual rights didn’t exist; far from it. It was more that these rights were so obvious and inviolable that a free society didn’t need “parchment” barriers to protect them.

That debate was highlighted in “The Heritage Guide to the Constitution”:

As a political gesture to the Anti-Federalists, a gesture highlighted by the Second Amendment’s prefatory reference to the value of a well-regulated militia, express recognition of the right to arms was something of a sop.

But the provision was easily accepted because everyone [italics in original] agreed that the federal government should not have the power to infringe the right of the people to keep and bear arms, any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion.

The Anti-Federalists may not have been right about everything, but it seems that Mason, more than most, anticipated the Chris Murphys and Alyssa Milanos of the world, for which we can be thankful.

Regardless of where one stands on gun regulation, it is simply incorrect to write off the idea that the right to bear arms is something less than an individual right grounded in the inherent rights to self-defense and—ultimately—revolution.

As one writer put it, this debate should start with how much regulation is consistent with preserving the individual right to bear arms—not whether the right exists at all.

The Second Amendment is no more of a “relic” of the past than the First Amendment is. The underlying idea that human beings are born with natural rights to free speech and self-defense is as pertinent today as it was at the time of the Founding, regardless of societal or technological changes.

Image courtesy of St. Louis Circuit Attorney's Office

8 thoughts on “Opinion: Why the right to bear arms is an individual right

  1. The Emerson decision of 2001,which was referenced in Heller has the colonial history of the people to keep and bare and would dispel any notion of collective rights,the history used in the decision.

    The Colonial Right To Bear Arms

    . . . . . The American colonists exercised their right to bear arms under the English Bill of Rights. Indeed, the English government’s success in luring Englishmen to America was due in part to pledges that the immigrants and their children would continue to possess “all the rights of natural subjects, as if born and abiding in England.” MALCOLM, supra, at 138. As in England, the colonial militia played primarily a defensive role, with armies of volunteers organized whenever a campaign was necessary. Id. at 139. Statutes in effect bore evidence of an individual right to bear arms during colonial times. For example, a 1640 Virginia statute required “all masters of families” to furnish themselves and “all those of their families which shall be capable of arms . . . with arms both offensive and defensive.” Id. (citing THE OLD DOMINION IN THE SEVENTEENTH CENTURY: A DOCUMENTARY HISTORY OF VIRGINIA, 1606-1689, at 172 (Warren M. Billings ed., 1975). A 1631 Virginia law required “all men that are fittinge to beare armes, shall bring their pieces to church . . . for drill and target practice.” HARDY, supra, at 588 (quoting 1 William W. Hening, THE STATUTES AT LARGE: BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA FROM THE FIRST SESSION OF THE LEGISLATURE IN THE YEAR 1619, at 173-74 (reprint. 1969) (1823). These laws served the twofold purpose of providing individual self-defense while giving England a reserve force available in time of war. MURLEY, supra, at 20.

    . . . . . Following the French and Indian War, England increased taxes and stationed a large army in the colonies. On April 3, 1769, the Boston Evening Post announced that colonial authorities urged the citizenry to take up arms. In reply to the claim that this request was unlawful, the newspaper observed that:

    It is certainly beyond human art and sophistry, to prove the British subjects, to whom the privilege of possessing arms as expressly recognized by the Bill of Rights, and who live in a province where the law requires them to be equipped with arms, are guilty of an illegal act, in calling upon one another to be provided with them, as the law directs.

    . . . . . HARDY, supra, at 589-90 (quoting Oliver M. Dickerson, BOSTON UNDER MILITARY RULE 61 (1936)). Shortly after the “Boston Tea Party,” British soldiers, led by General Gage, attempted to disarm the colonists. MALCOLM, supra, at 144. The British Parliament banned all exports of muskets and ammunition to the colonies and began seizing the colonists’ weapons and ammunition. Id. The British efforts to disarm the colonists hardened American resistance. At that point, the colonists began to form the “minutemen,” a nationwide select militia organization. HARDY, supra at 890. In February 1775, a colonial militia prevented the British from seizing weapons at an armory in Salem, Massachusetts. Two months later, the colonists defeated British troops at Concord. Id. at 591. Distinguished colonial leaders, such as George Washington and Samuel Adams, strongly influenced the organization of these local militias. Stephen P. Halbrook, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT 60, 61 (1984).

    . . . . . The “militia” which won the Revolutionary War consisted of all who were treated as full citizens of the community. George Mason stated, “Who are the militia? They consist now of the whole people.” Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 647 (1989) (citing statement of George Mason (June 14, 1788), in 3 Jonathan Elliot, DEBATES IN THE GENERAL STATE CONVENTIONS 425 (3d ed. 1937)). Similarly, the Federal Farmer referred to a “militia, when properly formed, [as] in fact the people themselves.” Id. (quoting Richard Henry Lee, OBSERVATIONS LEADING TO A FAIR EXAMINATION OF THE SYSTEM OF GOVERNMENT PROPOSED BY THE LATE CONVENTION: LETTERS FROM THE FEDERAL FARMER TO THE REPUBLICAN 123 (Walter H. Bennett ed., 1978)).

    . . . . . The individual right to bear arms, a right recognized in both England and the colonies, was a crucial factor in the colonists’ victory over the British army in the Revolutionary War. Without that individual right, the colonists never could have won the Revolutionary War. After declaring independence from England and establishing a new government through the Constitution, the American founders sought to codify the individual right to bear arms, as did their forebears one hundred years earlier in the English Bill of Rights.

    The emerson decision.


  2. There is not one country in the world that has been happy about giving up their guns and in most cases it has led to atrocities that are unbelievable against the very people they were supposed to protect

    One thing that everyone should understand is that a government that wants to take away your right to self protections does not have your best interest at heart

    What is going on in the United States of America at the hands of the Socialists running for government is an attempt to fulfil the plan of Agenda 21.

    We as American citizens can never let the government take total control of the population. People in America better wake up because the election of one of these socialists is the beginning of the end.

  3. There is one error in this article. Here in Vermont, we took care to assure our right to keep and bear arms in our original constitution of 1777, the one which established us as a nation. See Article 15 in this document: https://www.sec.state.vt.us/archives-records/state-archives/government-history/vermont-constitutions/1777-constitution.aspx

    Our 1793 state constitution mentioned in this article, which I think was adopted only after NY & NH finally allowed us to join the United States as the 14th state, made the same declaration in Article 16.

    Small potatoes? Yes, except we discussed these rights (and abolished slavery) before the US Constitutional Convention or its first ten amendments were adopted and, thus, are able to brag that we were the first people in the world to put such words to paper and live by them.

  4. First off who really cares what Alyssa Milano says or states, the real problem is with Chris
    Murphy’s statement, as the 2nd Amendment ” not personal defense “.

    Apparently, he really doesn’t understand a basic line within the Constitution, ” the right of the
    people ” to keep and bear Arms and shall not be infringed , Citizens are the people !!

    Legislators can write all the new gun bills they want and any person with an ounce of common
    sense, so that would leave Liberals out, knows they’ll accomplish nothing, they laws only infringe
    only on “law-abiding ” citizens and they aren’t the problem as there are millions of us with millions
    of firearms that have never hurt anyone !!

    Crooks & Crazies follow ” no laws ” ….. there lies your Problem, so fix it !!

  5. Our rights to bear arms for our own defense supersede any and all unconstitutional ‘red flag’ laws.

    It’s unfortunate that our LE doesn’t exist to uphold our rights, but to enforce illegal laws emanating from the cesspool that is Montpelier.

    Perhaps they should simply stop swearing an oath to ‘uphold and defend’ our Constitution, since they have so much difficulty understanding it.

  6. I have a right to protect my home and family any way that I see fit and I will die before I ever give up that right. Our forefathers were so much smarter and thoughtful than any of the idiots that are trying to take away those rights.
    They have an agenda and it doesn’t matter what is right or wrong , it’s what they want.

  7. If you are not familiar with the stink created by scholar Michael Bellesiles, here is link to the WIKI essay. I knew he was a stinker when he held his first book signing, and told the crowd at Burlington Barnes & Noble (he had taught for several semesters at UVM at the time) that Vermont never envisioned personal gun ownership. That is plainly false. Among the earliest statues on Vermont’s books are those requiring every able-bodied householder to be prepared to present at periodic musters all the “equipment of a soldier.” Those who by reason of infirmity or age were uncapable of appearing at muster were required either to make their own soldiers equipment available to a younger substitute, or to pay the cost of a soldier’s kit into Town funds to allow a poor householder to be so equipped. So he made all his statements without actually reading Vermont Statutes.

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