No Right to Atomic Bombs or to Fight the Government: What the Second Amendment Really Means

Contrary to what many think, the courts have not ruled that the purpose of the Second
Amendment is to take up arms against the US Government or kill lots of people. It instead supports a narrow notion of personal self-defense.

The language of the Second Amendment is cryptic.  Among the questions surrounding interpretations of it are whether the Amendment protects an individual right to bear arms and what  type of restrictions, if any does it permit.  Unfortunately, the US Supreme Court’s legal history regarding the Second Amendment is thin, with less than a half-dozen opinions on it.  Prior to 2008 in three separate decisions, the Supreme Court largely rejected or ignored claims that the Second Amendment protected an individual right and that the government–at all levels–was powerless to regulate guns.

But in 2008 in Heller v. District of Columbia the Supreme Court ruled that the Second Amendment did protect an individual right to bear arms.  Drawing upon historical evidence of the constitutional framers and a close reading of the sentence structure of the amendment, the Court concluded that: “There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”  But in reaching that conclusion the Court made two important qualifications.

First, the Court said that the right to bear arms is grounded in the right of confrontation or self-defense.  We have a personal right to bear arms to protect our personal security.  The law that was challenged in Heller encroached upon that personal right of guns for that purpose.  At no point did the Court assert–as some claim–that we have a right to bear arms to take up defense or fight against the United States government.  Waging war against the United States, as the Constitution declares, is treason, or at least a serious crime.  The entire idea of a right of revolution against the government is located not in the Constitution but the Declaration of Independence.  This right to armed revolution  against the government is a concept found in British political theory and the struggle against a tyrannical king.  Thomas Jefferson and others invoked this language as then British  subjects against King George III in England, but the Declaration of Independence really has no constitutional or legal significance.   The Constitution provides for the ballot box and not bullets as a means to resolve political grievances.

Second, the Supreme Court in Heller was clear that the Second Amendment was not absolute.  It pointed out that “the right was not unlimited, just as the First Amendment's right of free speech was not.”  The First Amendment imposes, for example, time, manner, and place restrictions on speech, and certain types of expression, such as child pornography or extortion are forms of speech devoid of any constitutional protection.

Heller declared that they did “not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation.”  While the Court refused to enumerate what types of  restrictions it would permit, it did say that among others, laws restricting the “possession  of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” would be permitted.  Subsequent to Heller, lower courts have upheld many other restrictions on guns.  In short, the Second Amendment is about personal self-defense, and that does not include the right to own automatic or semi-automatic weapons, or many of the other arms of choice used in mass killings.

The point is that the Second Amendment is no barrier to the types of public safety, common  sense restrictions on guns that large majorities of the population support.  Reasonable efforts to regulate gun violence are permitted.  The real problem then is not the Constitution, it is the lack of political will in Washington, D.C. and across the country to defy special interests and do their job.