Yesterday’s 5-4 Supreme Court ruling striking down the District of Columbia's ban on handguns and affirming the right to have guns for self-defense in the home raises the question, yet again, as to the meaning of the Second Amendment. Does the amendment specifically protect an individual's right to own guns, or is that right specifically tied to service in a state militia?
The Second Amendment reads, "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."
Pulitzer Prize winning author Gary Wills in his book, A Necessary Evil, wrote what I consider to be one of the most lucid and scholarly explanations of the amendment. Wills explains that the framers intentionally used the plural “arms” rather than the singular form of the word because “arms” means military service. Similar forms of the word are used in terms such as under arms, call to arms, to take up arms or lay down one’s arms.
The draft of the Second Amendment written by James Madison also lends credence to Wills explanation:
“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.”
Madison is clearly referring to the military and to conscientious objectors who are exempted from “bearing arms” for their country.
Wills uses Article VI of the Articles of Confederation to explain the meaning of the word “keep” in the amendment. Article VI reads, “Every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.”
Militias kept their arms in arsenals and armories. If the Congress had meant something other than “in public stores”, they could easily have written, “in the home”.
In his dissent, Justice John Paul Stevens supported Wills interpretation by stating the obvious. The Second Amendment is notable for its “omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense.” It’s important to note that both of the rights were explicitly protected in Pennsylvania and Vermont when the framers wrote the Second Amendment. So why didn’t these intelligent and visionary men add the same words to the Second Amendment?
Wills concedes that there may be other reasons for arguing for a right to own one’s handguns and to keep them at home. It’s just not a constitutional right guaranteed by the Second Amendment.