Guns and the Second Amendment

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Mass killings are the events that grab our attention. The media broadcasts them throughout the nation; they can occur anywhere, in schools and universities, in movie theaters, churches, military bases, and on city streets and sidewalks. And we fear that they could happen to us and to our children. While they may occur in any country, they happen most often here, in the United States. A partial list includes:  1999 – Columbine High School, Colorado (13 dead) and Atlanta, Georgia (12 dead); 2002 – Washington D.C. sniper (10 dead, 3 wounded) and Omaha, Nebraska (9 dead, 5 wounded); 2008 – Chicago (5 dead, 1 wounded) and Northern Illinois University (6 killed, 16 wounded); 2009 – Alabama (10 dead), Binghamton, New York (13 dead) and Fort Hood, Texas (13 killed, 42 wounded); 2011 – Tucson (6 killed, 12 wounded); 2012 – Aurora, Colorado (12 killed, 58 wounded) and Newtown, Connecticut (26 dead, 1 wounded).

As dreadful as these numbers are they pale before the relentless killings that take place every day, one by one or two by two in bars, in the inner city, in homes and on the streets of the United States. Since 1968, the year Robert Kennedy was assassinated by a modest-sized handgun, over 1,384,171 people have died by firearms in the United States, more than the 1,171,177 soldiers killed in all the major wars since the revolution.  It takes about thirty years worth of traffic fatalities to reach that number, and by 2105 yearly gun deaths are projected to outpace traffic deaths.  Since Newtown, guns have killed over 1300 people.  On an average day guns are used to kill 85 people. This is the equivalent of three Newtown tragedies every single day.

No other so-called “developed” country has this kind of toll.  Of course, even if there were such a thing as a gun-free societies murders and suicides would still occur. And it is true that citizens in some countries—Switzerland is the poster child—have many guns and few murders.  Yet when struck by mass murders, most other countries take action. After a 1996 mass shooting at Port Arthur, Tasmania where 35 people were killed and 23 wounded, Australia prohibited gun ownership except for hunting, animal control and a few other reasons.  Many countries do not go this far and they still are able to reduce the body count. They place reasonable controls on gun ownership—better screening, training and licensing—and limit the number of rounds a gun can fire. The mixture of inadequate mental health services, easy access to an abundance of high powered-assault weapons and handguns, and pockets of severe poverty amidst plenty makes for a deadly combination.


There are many possible steps that could be taken to lower the killing rate. We could improve mental health services, require strong background checks, reduce the number of weapons, require training and licensing, moderate the killing power of existing weapons, and reduce poverty and provide everyone with a right to a decent life.

Few would deny that, even without the shield of the Second Amendment, guns do have a legitimate place in American society. Hunting is not my cup of tea, but many people get great pleasure and comradeship out of it and it is morally preferable to factory farming that produces most people’s protein (my own included). It is easy to understand why people who live in isolated rural communities would have a legitimate need for a gun to protect home and family.  But there is no sport in killing a deer with a Bushmaster .223 semi-automatic rifle, and a simple shotgun should keep intruders at bay.

Sensible limits on guns are consistent with any reasonable interpretation of the Second Amendment.  Even legal originalists who believe that they can decipher the intent of the Founding Fathers, and that in this intent is the answer to every modern problem, should pause in seeking the meaning of the Second Amendment.  Why, they might ask, of all Ten Amendments to the Bill of Rights, is the Second the only one that begins with an explanation, i.e. “A well regulated Militia, being necessary to the security of a free State.” Why did the Founders not just say:  “the right of the people to keep and bear Arms shall not be infringed”? Clearly, some of them must have believed that this was a right that was attached to membership in a militia—otherwise why explain it?  And some must have believed too that this right belonged to us as individuals, not just as members of a collective.  Without these differences it should have been very easy to say that the right of people to keep and bear Arms shall not be infringed.  But this is not what they said. Instead they said the right of “the people.

Most likely there was not uniform agreement on what the wording should mean and what the restrictions should be, just as there is not agreement now.  “A well regulated Militia, being necessary to the security of a free State” could just be taken as a random comment, or it could be taken as a modification of the right. Certainly at the time of the country’s founding, when police forces did not yet exist in any number, the right as a member of a militia to keep and bear arms made a lot of sense. But it was not the only sense that might have been made in a largely rural society where many people hunted for their own food.  Unfortunately the originalists on the Court insist on crystallizing meaning and pretending that there was total agreement among those most disputatious of men. This kind of agreement was not even known to the Gods.

Any sound interpretation will consider what might have been said but was in fact not. The founders might have left out the militia clause, making it clear that this was an unqualified, individual right. Or they might have said that the right belongs to people (not “the people”), or better to individual citizens, but they did not do this. They said instead that the right belongs to “the people”! They could have said that people have a right to own arms, not just to “keep” and “bear” them. They surely understood the word “own” but they avoided using it. Instead they used the words “bear” and “keep,” words that can apply either to members of militias or to individuals. In other words they left us with a legacy of an open future with regards to “arms.”

One might correctly assume that individual founders had differences on this issue and that the wording was intentionally open to get something passed, and to allow future legislators to consider new conditions as they added flesh to the skeletal meaning to these 27 words.  They probably could not image a world with the Bushmaster .223, but they very well may have understood that the smoothbore musket and the flintlock pistol, would not always be the weapons of choice. Contrary to the implications of the views of rigid originalists, the Founders were men of intelligence. They knew that there would be a future after they passed away; they understood that this future would differ from their own present and they left room, especially in the Second Amendment, for new legal interpretations to grow.


Walter Feinberg is a Professor Emeritus of Educational Policy Studies at the University of Illinois, Urbana. 

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