Freedom To Bear Arms Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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One of the most controversial amendments in the Bill of Rights to the U.S. Constitution is the Second Amendment, which protects the right to keep and bear arms. The controversy stems from four basic issues: (1) Is it an individual right or a collective right? (2) What is the purpose of the right? (3) Is it a fundamental right? and (4) Is it necessary in modern society such that certain limits should be placed on it?

A Collective Or Individual Right?

Throughout the latter half of the twentieth century, the first issue, whether the right to keep and bear arms is a collective right or an individual right, has been the primary focus of discussion concerning the Second Amendment. Proponents of the collective right theory stated that the Second Amendment applies only to militias that are under the control of the government and not to individuals. The individual right proponents relied on the fact that it was the individual citizens who bore arms during the American Revolution (1776–1783) and not militias controlled by the government. Furthermore, the many writings of the Founders clearly supported the individual right to keep and bear arms.

In modern jurisprudence, the issue has been raised in the lower courts in a number of cases, but these decisions almost uniformly find that the Second Amendment provides only a collective right. One of the most famous exceptions was the decision in United States v. Emerson (1999), wherein a federal district court in Texas found that it was an individual right. The issue was brought to the U.S. Supreme Court on a number of occasions, but the Court refused to hear the issue. Finally, the U.S. Supreme Court, in the case of District of Columbia v. Heller, in 2008, ruled that the Second Amendment protected an individual right to keep and bear arms.

Purpose Of The Second Amendment?

As to the second issue, the purpose of the Second Amendment, once again, there is controversy. However, the controversy is more frightening, lurking underground, and not often mentioned, if mentioned at all, in either court decisions or academic debate. Indeed, this controversy is probably the most political of all questions. This political question is the issue of the right to revolt. The U.S. Declaration of Independence clearly advocates the right to revolt against a tyranny. The writings of the Founders indisputably recognize the right to revolt. Indeed, the Founders did just that, revolt from British rule. Yet even a cursory review of the literature and judicial decisions reveals an overwhelming focus on the right to self-defense, usually in the context of defending oneself from common criminals. The right to revolt is conspicuously absent.

As no American court has recognized the legal right to revolt, it would seem that there is no such right. Indeed, if a court were to recognize such a right, it would essentially be permitting its own destruction. However, there are grounds for considering the right to revolt a political right. A legal right is a right that is enforceable by the courts. In contrast, a political right is a right that is recognized in a political philosophy. There is frequently overlap between political and legal rights. Some political rights might be enforceable in a court. Others might not be enforceable.

Indeed, the U.S. Supreme Court has specifically recognized that it will not hear what is referred to as “a political question.” In the decisions of Baker v. Carr (1962) and Luther v. Borden (1849) the U.S. Supreme Court explained that political questions involve those issues best left to the other branches of government. As a practical matter, anyone who unsuccessfully revolts against the government would be subject to criminal prosecution, and a defense based on the Second Amendment would not be recognized.

A Fundamental Right?

The third issue is whether the right to keep and bear arms is a fundamental right. The U.S. Supreme Court has presented three basic definitions of a fundamental right. The first is whether the right in question is a natural right, under the principles of natural law, such as the right of self-defense, as espoused by, for example, Sir William Blackstone, a famous English legal commentator, in his Commentaries on the Laws of England published in the late eighteenth century. The second is whether the right in question is fundamental to American justice and implicit in the concept of ordered liberty, as recognized in the case of Duncan v. Louisiana (1968). The third is whether the right is implied in the penumbra of the Bill of Rights, such as the right of privacy, recognized in the case of Griswold v. Connecticut (1965) concerning access to birth control. The second meaning has been the most frequently cited by the American courts.

As a general matter, fundamental rights in America consist of the first ten amendments, the Bill of Rights, to the U.S. Constitution, with some exceptions under the doctrine of selective incorporation. Under the doctrine of selective incorporation, some of the rights in the Bill of Rights are not incorporated. In this context, this means that the right in question will not apply to the states under the Fourteenth Amendment. If a federal right is not incorporated, then the states are not required to enforce or acknowledge that right. At this time, the Second Amendment, although it has been recognized as an individual right, has not been recognized as a fundamental right such that it should be incorporated and applicable to the states.

An Outdated Right?

The fourth major issue concerning the right to keep and bear arms is whether society has changed such that the right is outmoded. There are numerous political groups opposed to the ownership of guns. They have successfully lobbied for the enactment of numerous gun control laws across the nation, which mandate such requirements as licensing, waiting periods before purchases, background checks before purchasing, and prohibitions. The basic premise of such groups is that guns are dangerous. Many people are killed with guns, and many crimes are committed with guns. These groups argue that regulating, controlling, and even prohibiting the ownership and use of guns will reduce these dangers to society. There is significant evidence supporting aspects of these claims.

However, when considering the right to keep and bear arms, a balancing must be made: do the benefits of individual gun ownership (the right to revolt against a tyrannical government) outweigh the risks (crimes committed with guns)? This question is still being debated in the political arena in America. In the international context, the right to keep and bear arms is generally not recognized. It is not part of the United Nations Charter, nor is it part of the International Covenant on Civil and Political Rights.

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