The Second Amendment Endangered

“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.”

Second Amendment

If any of the five conservative Justices on the Supreme Court leaves the Court during Obama’s second term, it will spell the end of the Second Amendment as we know it. In District of Columbia v. Heller (2008), the Supreme Court held in a five to four decision that: “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Rather than summarize the nuanced and well reasoned majority opinion authored by Justice Antonin Scalia, the following will focus upon the dissenting opinion of Justice John Paul Stevens. If a progressive justice was to replace one of the conservative justices on the Court during Obama’s second term, this dissenting opinion will likely become the new interpretation of the Second Amendment.

Stevens states in his dissent that “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.” Stevens further argues that:

[T]he words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.

Therefore, Stevens – and the three other progressive Justices who join him in the dissent – view the right to bear arms as a collective right and not an individual right. “When each word in the text is given full effect,” he continues, “the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” According to Stevens, “Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment as ‘elevat[ing] above all other interests’ ‘the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’”

A progressive dominated Supreme Court in the near future could very well claim that the existence of standing state National Guards in each of the fifty states eliminates the need for state militias. From this, this hypothetical Supreme Court could hold that the individual right to bear arms may be totally eliminated.

While it is possible to go to great lengths in analyzing the history of gun laws in the United States or in analyzing the legislative history of the Second Amendment, the fact remains that there is no ambiguity in the language of the Second Amendment. Therefore, there is no reason to go beyond the text of the Bill of Rights.

The Second Amendment states: “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.” In effect, the logical form of the Second Amendment is a material conditional – an “if … then” statement. The material conditional is represented as follows: p -> q.  If p, then q.  So, the Second Amendment may be paraphrased as stating “IF a well regulated Militia is necessary for the security of a free State, THEN the right of the people to keep and bear arms shall not be infringed.”

Let us assume that militias have gone the way of the dodo bird.  Let us assume that the existence of state National Guards under control of state Governors have made state militias unnecessary. Does this mean that the right of the people to keep and bear arms may be infringed? No. Such a conclusion would be fallacious. In fact, this kind of fallacy has been given a name – denying the antecedent. In the material conditional, “p” is known as the antecedent and “q” is known as the consequent.

In order to understand why denying the antecedent is a fallacy, consider a more mundane example. “If it is raining outside, Jane will take an umbrella.” If we assume that it is not raining outside, can we logically conclude that Jane will not take an umbrella? No. Why not? Well, for one thing, Jane may take her umbrella in order to protect herself on a bright and sunny day. Perhaps Jane easily burns in the sun. Perhaps Jane has a fair complexion. Perhaps Jane wishes to avoid skin cancer. Jane may also take her umbrella because she wants to take it to her office and leave it there for days when it begins raining unexpectedly later in the day. Or perhaps Jane is taking the umbrella to her friend’s house. Perhaps the umbrella belongs to her friend and Jane is returning it. Or perhaps Jane has many umbrellas and is giving it to her friend who is in need of an umbrella. In other words, there are many reasons why Jane may take an umbrella with her upon leaving her home that have nothing to do with rain.

Thus, one may not conclude that individuals do not possess the right to keep and bear arms even if there is no longer a need for state militias. If the authors of the Bill of Rights had intended to make the existence of state militias a necessary condition for a right to keep and bear arms, then they would have phrased it differently.

Unfortunately, progressive Supreme Court Justices do not always demonstrate an ability to read, let alone an ability to understand basic logic. Such Justices view the Constitution as a “living document.” In other words, they are willing to pragmatically read into the document any purpose that suits them.

Without an individual right to keep and bear arms, the American Revolution would not have succeeded. Without an individual right to keep and bear arms, there is no way to “dissolve the political bands” that connect the people to an oppressive government. Without an individual right to bear arms, there is no protection for the people against its government. Government will be emboldened to do as it sees fit. Tyranny will prosper.