Monday, February 08, 2010

The right to bear arms

What exactly does the 2nd amendment guarantee? The debate around the 2nd amendment has come up a lot in my social circles lately, and I think I'm one of a few that has not come to a decision about it yet. Given that I have readers on both sides of this issue, let's dive in, but with a scientific/logical approach.

Apart from regulation of who has access/what checks are done/whether guns can be hidden (to which most sane people can usually generally agree to some basic guidelines), there seem to be two main areas of disagreement that arise about the 2nd amendment.

The first is on the wording of the 2nd amendment itself. What does it mean, and what was its original context? In other words, does the 2nd amendment guarantee us the right to bear personal weapons? For starters, let's look at the actual text:

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.

From a purely grammatical standpoint, this amendment is messy and confusing. Does the right of the people to bear arms depend on being part of a well regulated militia? For you history buffs out there, in what context was this amendment given? And for you lawyers, do we even care about the original meaning, or just how it can be interpreted in the present day?

The second general area of disagreement is regardless of whether or not we should have the right to bear arms, does it benefit us as a society? In other words, do guns make us more safe? Here I've heard both sides shout arguments: access to guns either increases violent deaths, or acts as a deterrent to/weapon against crime. Does either side have scientific evidence to back up these claims? Has anyone done a study to show that inner city gangs have less death if they don't have access to guns, or whether they just revert to knifing each other? Or has anyone studied whether families with guns have successfully deterred/impeded would be robbers?

In short, I'm looking for solid facts and logical philosophical arguments about these 2 areas to back up some of the ardent positions a lot of you take on this issue. Do I have any takers?


Benjamin Pollack said...

One simple thing that makes parsing that sentence moot is the fact that, both in 1792 when that statute was written and now, most adult Americans (back then, 18 to 45; today, 18 to 64) are part of the citizen's militia. The Supreme Court agreed in its 2008 decision U.S. District of Columbia v. Heller affirmed that this was the sense of militia intended when the amendment was written.

I'm not taking any sides on what our policy should be; I'm simply suggesting that that's what the amendment, in its current form, actually means.

Benjamin Pollack said...

And now, posting my opinions as a separate comment:

I believe that the amendment, as all laws, should be interpreted according to the letter of the law. That need not correspond to the original meaning per se, but must correspond to the actual syntax and diction of the law on the books. Interpreting a law based on contemporary mores is, in my opinion, extremely dangerous, giving the judicial branch the ability to truly fabricate new laws, which is not the point of that branch of government. Further, it makes you as a citizen less safe, since suddenly what is legal and illegal is no longer specified by law, but rather by whatever the judge who hears your case interprets the law to mean in a contemporary context. With that in mind, I think that the Supreme Court's interpretation of District of Columbia v. Heller is the correct one.

If we're unhappy with how the Second Amendment reads, we have mechanisms clearly specified for changing it--specifically, passing a new amendment. Doing so is both more powerful than trying to "reinterpret" an existing law in new social mores, and safer, insofar as the law as-written remains the definitive guide for what is legal and what is not.

Yet I do not believe that the Second Amendment should be repealed. This country established its initial freedom through bloodshed wrought by the civil militia. While I'm certainly no warmonger, the fact remains that, sometimes, governments can only be controlled through violence. Denying the rights of citizens to bear arms means that the government suddenly is the only game in town.

That does not mean that I'm opposed to gun regulation. Certainly, laws making it more difficult to quickly acquire handguns have dramatically cut down on deaths by shooting, but doesn't meaningfully pose a problem to a citizen using a gun to defend themself. Putting a delay on firearm acquisition therefore seems fine to me.

Matthew said...

yes, as a matter of law, it is an individual right. at least as it pertains to the federal govt. there's a case pending right now as to whether it applies to the states too or if states can restrict you.
that's the textual analysis at least that prevailed in heller. the minority attempted to argue an alternative textual interpretation, which is nice because they usually go more along the lines of "how it can be interpreted today." i find that approach repulsive because it's the only area of law where lawyers openly seek to avoid the true meaning of what was written. the constitution provides ways of modernizing. we have branches of govt designed for that. if the people don't like the way it comes out, they can elect officials to write different laws and/or amendments. it's not up to the courts to alter the law.

as for safety, there are loads of studies on both sides and none of those examples you gave are mutually exclusive. i've done a lot of research on this, but don't have any links handy right now. you can go on and for an idea. yes, they reduce crime. yes, people injure themselves. yes, families successfully deter criminals. sadly, guns do injure owners (not during attempts to deter criminals) more than prevent crime. and what you didn't mention is how many guns get stolen. for me that's the scariest part. far from scientific, but anecdotally from a few years living in a declining neighborhood I can tell you we had a few crimes prevented, additionally a couple bad guys shot by homeowners, no homeowners shot while defending themselves, but many unattended guns stolen. injured family members and stolen gun problems could be remedied with safe handling and storage, but people simply aren't responsible.

what shocks me about your blog post is the notion that somehow gun control would have ever successful prevent gangs from having guns. gang members don't have their guns legally to begin with. they're mostly repeat offenders prohibited from owning guns. they certainly haven't applied for concealed carry permits. they absolutely don't have class 3 licenses or legally distributed automatics. people using guns to commit crimes don't care if having a gun is another crime itself. they'll never have to resort to stabbing each other because they'll always obtain guns illegally, just like they do now. their control depends on having guns. banning them would be a total failure similar to the war on drugs.

Amanda Z said...

For a bunch of legal cases, check out:

and on a more humorous note:

(links care of one of my labmates)

Matthew said...

looks like that site hasn't been updated in about 10yrs. beware of bad law. it also therefore can't have any studies about the effect of now expired federal "assault weapon" ban.

nice shirt. scalia's plain meaning approach in heller should really have lead us there. shame.

Moshe Jacobson said...

Sure, we all believe the world would be a better place without lethal weapons, but the fact is that this technology exists and will always be available underground, as Matt already said. Therefore, outlawing guns would only empower the outlaws. Hardly the intended effect.

That said, however, I have no desire to purchase a gun. I have never lived in a high risk area or had a gun pointed at me, but I believe that guns do not help resolve conflict, but rather help escalate it.

My guess would be that any conflict where one side has a gun and the other does not is less likely to end in a gunshot death than one in which both sides have guns. The situation is more likely to be resolved with money or other non-lethal means.