Fatally Flawed Second Amendment

Samantha Nixon, left, carries a 12-gauge shotgun as she stands with others before a gun rights rally on the steps of the Capitol on Friday, Jan. 15, 2016, in Olympia, Wash. Lawmakers and others spoke at the rally, which drew about 100 people, emphasizing legislative priorities and speaking against gun-related policies of President Barack Obama, like his recent executive actions to expand background checks to cover more firearms sold at gun shows, and elsewhere. (AP Photo/Elaine Thompson)

Gun rights advocates rest their case heavily on the Second Amendment to the U.S. Constitution, insisting that the Second Amendment gives people the right to keep and bear arms. They are mistaken in their claim.

Justice Anthony Scalia, writing the majority opinion in District of Columbia v. Heller, acknowledges this when he writes: “The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’ ” He adds: “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that [the right] ‘shall not be infringed.’ “

So if the Second Amendment does not give people the right to keep and bear arms, what does it say?

“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.”

This amendment contains three claims. The implicit claim is that there already is a right to keep and bear arms, as the majority opinion above asserts. The second claim is that a well regulated militia is necessary to the security of a free state; and the third claim is that the right to keep and bear arms shall not be infringed because a well-regulated militia is necessary to the security of a free state.

In short, the Second Amendment does not establish the right to keep and bear arms; it establishes that such a right (which it presumes to exist) shall not be infringed. And it offers as the reason it shall not be infringed the assertion that a well-regulated militia is necessary to the security of a free state.

All of these observations concur with the majority opinion in District of Columbia v Heller, which states that “the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia”; the Court also asserts that “[t]here are many reasons why the militia was thought to be ‘necessary to the security of a free state.’ “

Given that the Second Amendment does not establish the right to keep and bear arms but, rather, presumes it, one could argue that the presumption is mistaken. And there would be good grounds for doing so. Under social contract theory, with which the Founding Fathers were quite familiar, citizens give up to a government their natural right to protect and preserve their other natural rights, and in exchange for giving up their right to protect and preserve their other natural rights, that government promises to protect and preserve those other natural rights for them. This is what the social contract is. Arguably then, the natural right to keep and bear arms, allegedly necessary for the security of a free state, is precisely what citizens give up in exchange for a government securing citizens’ other natural rights.

But put all that aside. Assuming that the right to keep and bear arms does exist, even within a social contract, even with a government whose duty it is to protect its citizenry and preserve their other freedoms, the reason the right should not be infringed is because a militia is necessary to the security of a free state—or so thought the Founding Fathers. Thus, a legitimate question to ask is whether a well-regulated militia is necessary to the security of a free state.

Recent evidence strongly suggests that a well-regulated militia is not necessary to the security of a free state. Erica Chenoweth and Maria J. Stephan, in their 2011 work Why Civil Resistance Works, have shown that attempts to overthrow tyrannical governments or to change their policies as well as attempts to repel armed invasion, are twice as successful when they are pursued nonviolently than when they are pursued violently. As Chenoweth states in a 2011 op-ed piece in the NY Times, she and Stephan “compared the outcomes of hundreds of violent insurgencies with those of major nonviolent resistance campaigns from 1900 to 2006; [they] found that over 50 percent of the nonviolent movements succeeded, compared with about 25 percent of the violent insurgencies.” What’s more, they show, the numbers of deaths arising from attempts to secure freedom are far greater in violent than in nonviolent conflicts. Recent evidence, in short, strongly suggests that it is false that a militia is necessary to the security of a free state.

If that is so, then the premise on which the Founding Fathers based their assertion that the right shall not be infringed is false. Does that mean that the right should not be infringed? Perhaps not. After all, self-defense is another reason why the right to keep and bear arms ought to be preserved.

But again, recent evidence also suggests otherwise. Charles Branas and others, in a 2009 study, found that “individuals in possession of a gun were 4.46 times more likely to be shot in an assault than those not in possession.” Data also show that (1) criminal homicides outnumber justifiable homicides by a ratio of 36 to 1, (2) that crimes committed with a gun outnumber uses of a gun in self defense by a ratio of 7 to 1, and (3) that suicides by guns outnumber homicides by guns. In short, the evidence strongly links possession of a weapon to criminal homicide, to other crimes, and to one’s own death more than it does to successful self-defense.

On the basis of evidence that did not exist at the time the Second Amendment was written, it appears that even under the presumption that a right to keep and bear arms exists, the reasons offered by the Founding Fathers for not infringing on that right no longer stand up to well informed scrutiny.

Dr. Barry Gan, syndicated by PeaceVoice, is Professor of Philosophy and Director, Center of Nonviolence at St. Bonaventure University.