The 2d Amendment Debate: Why There is No Individual Right to Guns (Notwithstanding Parker v. D.C.)

Abstract

THE NON-EXISTENT INDIVIDUAL RIGHT TO GUNS There are many legitimate reasons why citizens should be allowed to own firearms. Sport shooting, target practice, gun collecting, hunting, and most of all, self-protection. But one often cited ground that is NOT a reason is the Second Amendment. That provision was intended to support the State's ability to mount a well regulated militia, which inherently requires the control and involvement - funding, training, equipping and discipline - that only the State can provide. Unfortunately, led astray by a fallacious linguistic parallelism and insufficient historical understanding, two federal Circuits, most recently the D.C. Circuit in Parker v District of Columbia, have erroneously decided the 2d Amendment creates 'an individual right to guns'. The Supreme Court will now decide the issue. This article shows - through various logical 'thought exercises', close attention to ALL the language and the structure of the 2d Amendment, application of the usual canons of construction, pre-2d Amendment history including the Articles of Confederation, and the wisdom of the times as expressed by two major voices, George Washington and Adam Smith - the true nature and intent of the 'right to keep and bear arms'. It was to support a 'well regulated' militia, controlled and created by the State, and never an individual's right to guns. Discussion on the pros and cons of various forms of gun control can thus proceed on the basis of reason, experience, and recognition of the security and privacy interests manifest in the particular locale. This may be Congress, a State legislature, or the assembly of a local town or city. The 2d Amendment is not involved. The Author has been the principal attorney in several Constitutional cases in the Supreme Court, is a Life Member of the American Law Institute, and Who's Who in America, 1979. He served as Assistant U.S. Attorney for the District of Columbia, 1967-69 and as Consultant, U.S. Department of Justice. He graduated from Harvard College and the University of Chicago Law School, where he was Managing Editor of the Law Review. He has no financial or other interest in the outcome of this issue.