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The Right To Bare ArmsToday’s debate on Gun Control is largely framed by two diametrically opposed perspectives. On the one hand, many proponents of gun rights hold the position that the Second Amendment affords an unrestricted right to keep and bear any arms of our choosing, subject to exactly zero restrictions. All Americans, they argue, regardless of mental capacity, prior conviction status, etc. are guaranteed the right by the Constitution to keep and bear any arms they wish. On the opposing side, many gun control proponents advocate complete civilian disarmament. In their minds, the average person simply can’t be trusted to own firearms. They believe that in a gun-free world, crime would simply cease to exist. For them, the Second Amendment is either an outdated relic destined to be swept into the dustbin of history or else it specifically requires gun owners among the citizenry to be members of a sanctioned and organized state militia under control of a governmental authority . . .

A large portion of this debate is centered around the perceived ambiguity of the Second Amendment.

“A well-regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

What exactly is its meaning and what – if any – limitations on the right are imposed?  There are vocal minorities on both sides of the argument who are more than ready to explain in great detail why their interpretation of the Second Amendment is the right one.  The simple fact, however, is that both sides should put a cork in it because the Constitution has clearly articulated exactly who gets to decide what it means.  From Article III:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

So the Supreme Court gets to decide what the Second Amendment means. And decide they have. In Heller vs. D.C., the Supreme Court took a pretty definitive stance on the meaning of the Second Amendment. Specifically, Heller held (among other things):

“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.”

Pretty neat package, eh? The decision goes on to deal with that confusing militia reference in the first part of the Second Amendment by stating:

“The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”

So, while gun rights advocates certainly have a lot to cheer about in the Heller case, it’s not all rainbows and butterflies. Notably, the Court acknowledged that the Second Amendment does not confer an unlimited right and is subject to reasonable restrictions:

“Like most rights, the rights conferred by the Second Amendment are not unlimited.  From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on 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.26

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

So citizens have an individual right to keep and bear arms, but that right is not unlimited and can be circumscribed by laws. In a stroke of the pen (or computer keyboard), the Supremes both eliminated existing ambiguity and created a new one in the interpretation of the Second Amendment. They have established a continuum of sorts, with ‘no rights’ at one end and ‘no restrictions’ at the other.

We know that we don’t fall at either extreme, but exist somewhere in the middle with the balance between rights and restrictions a constantly changing landscape depending on where we happen to live and what events have recently transpired.

To understand how these changes are driven, it’s helpful to understand Social Contract Theory. Social Contract Theory was formally proposed in the seventeenth century, but has antecedents in Greek and biblical antiquity. The concept of the Social Contract as espoused by Thomas Hobbes and John Locke predates the Constitution by more than 100 years. The basic premise states that:

“Members of society are accorded certain rights in return for giving up certain freedoms society’s members would otherwise possess in the state of nature (where lawlessness reigns) or by remaining alone (as Robinson Crusoe).  Society (in the sense of a “state”) emerges to enforce the rights and responsibilities borne by its members.  Because these rights and responsibilities are neither “natural” nor “fixed,” they can be altered should a society’s members so desire.  However, they must remember that exercising additional rights will always entail bearing additional responsibilities, and bearing fewer responsibilities will always entail exercising fewer rights.

What does this mean in terms of gun ownership? Simply that all people have natural, inalienable rights including the right to protect themselves using any means necessary.  This is the right that’s enshrined in the Second Amendment.

Provided these people remain in nature, these rights remain without restrictions. However, once people decide to leave the state of nature and join a community, the collective will of the members of the community can restrict the exercise of these rights by its members. Those who disagree with the restrictions are free to leave the community, but if they stay, they are expected to conform to the community’s standards.

Social Contract Theory then explains the variation in gun rights between the several states. People in, say, Massachusetts have, through their elected leaders, decided that they wish to live under a more stringent gun control regime than people in New Hampshire. This makes sense, in theory, as the closer government is to the people, the more that government reflects the people’s wishes.

A state government can better represent the wishes of its residents than a national government can simply because the state government must satisfy the needs of a smaller and less diverse group.

There are two basic problems with this principle. First, our governmental system is founded on the principle of majority rule with protection of the rights of the minority. This means that no matter what the state wants to do, it can only go so far. Any attempt to restrict the right to keep and bear arms past a certain point is subject to litigation as New York state will likely find out the hard way.

Secondly, a person may move to a state with more permissive laws. If the state later decides to increase restrictions, it’s not reasonable to expect the residents who object to vote with their feet. Some accommodation must be made. This, by the way is the basis for the grandfathering provision in many laws – it enables the state to tighten rules without fearing a court challenge.

Beyond these operational concerns, there’s a larger consideration. The whole concept of the Social Contract hinges on the ability of society to provide something of value in exchange for the rights given up by the individuals who choose to live in that society. Do the increased firearm restrictions imposed on Massachusetts residents result in safer communities? People who have to live in some of the rougher areas south of Boston might disagree that they’ve made things any safer for them and their families.

This then is the first issue with the Social Contract. Are the enhanced protections real or merely theoretical? If they’re only theoretical, then society has failed to honor its side of the bargain and shouldn’t expect individuals to honor their side.

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  1. The absolute right to self defence exists outside of any rule of law. Even if the 2nd Amendment did not exist, that absolute right would still exist. From Justice James Wilson (who drafted of the US Constitution):

    The defence of one’s self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law. This principle of defence is not confined merely to the person; it extends to the liberty and the property of a man: it is not confined merely to his own person; it extends to the persons of all those, to whom he bears a peculiar relation—of his wife, of his parent, of his child, of his master, of his servant: nay, it extends to the person of every one, who is in danger; perhaps, to the liberty of every one, whose liberty is unjustly and forcibly attacked. It becomes humanity as well as justice.—Lectures on Law, Chap. XII, “Of the Natural Rights of Individuals,” 1790.

  2. so let me get this straight: if the SCOTUS decides that the first amendment’s protection of free speech doesn’t apply to, say, anti-government sentiment, then that’s the law of the land, right?

    sorry, not buying it. the Bill of Rights says what it means and means what it says. the second says that i have the right to own and carry “arms”, meaning any weapons, for any reason. but since the Constitution also says that everyone has the right to life, liberty, and property, that means i can’t use my fully automatic grenade launcher to harm or oppress anyone else or their property, unless they first attempt to do the same to me.

    see how that works? so basically you have the right to do just about anything you want, so long as it doesn’t directly endanger someone else. yelling at the idiotic antics on the screen is your first amendment right, but yelling fire is not since it endangers others, unless of course the theatre actually IS on fire.

    • Yeah, I’m afraid that your analysis is correct. If the SCOTUS decided to regulate certain speech as not protected by 1A it would not be. It would then be up to Congress and the people to amend the Constitution to change it. Note – SCOTUS only has authority to rule on ambiguities in the Constitution. The people can always rewrite the Constitution (although that would be a bit tricky these days).

      Let me give you a concrete example – In the Constitution, it states that all powers not specifically granted to the Federal Government are reserved to the several states (or something close to that). The point is that the framers wished to enumerate specific powers to the Federal government but allow states to retain much of the power. Over the past couple centuries, SCOTUS has used the Commerce Clause of the Constitution to extend the Federal Government’s powers. Basically, as long as the Feds can show that something involves some component of Interstate Commerce, they can regulate it. Whether you agree with this interpretation or not, that is the law of the land and it is enforced.

      A second example is the recent battle over the Universal Healthcare mandate and whether Congress has the right to impose a fine on people who don’t have healthcare. Not only did SCOTUS actually rewrite the law to call it a “tax” rather than a “fine”, they then said that Congress with its ability to levy taxes has the right to do this. Like it or not, you will now either carry healthcare or pay the tax. You may not agree. You may think its not right. Doesn’t matter. You will pay or face the sanctions.

      The power of SCOTUS to ultimately define what our laws mean is the main reason why people have been so worried about what a couple more Obama appointees could do to our county. We may only have to struggle through four more years of Obama, but what he does with SCOTUS could affect us for a generation or longer.

      • That is not correct. The Bill of Rights codifies rights that where ours before the government and courts were formed. The rights will exist long after the government and the courts are gone. The Constitution and courts don’t grant rights (except the killing of helpless babies and free shit for the lazy) and it can’t take them away. The Congress has no authority to make law taking our rights away and therefore the court can’t approve of those rights being taken away.

        • Title 18, U.S.C., Section 241
          Conspiracy Against Rights

          This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States.

          Owen v. Independence 100 S.C.T. 1398
          “Officers of the court have no immmunity, when violating a constitutional right, from liability. For they are deemed to know the law.”

          Supremes are legally barred from misinterpreting 2A. American Jurisprudence, the rules that officers of the court follow, also states quite clearly at times that in questions of Constitutionally protected rights the court must rule in favor of the individual right.

          Whether they have done something in the past is irrelevant to the legality of the action.

  3. Nicely written, Mr. Barrett. I would point out that the purpose of the bill of rights is to specifically restrain government. At the same time it doesn’t constrain other unenumerated rights. I would also argue that the laboratory of the states is not appropriate for natural rights, especially those in the bill of rights. While the courts have a legitimate say, I believe they have shifted too far in their interpretations, until recently. I would hope that further rulings move us back to a more permissive state. I also believe that the more legitimate way to address the second amendment is through the constitutional amendment process, not various local and national laws.

    • Agreed with much of what you say. I, too, am worried about the movement of the courts, specifically as many of them have attempted to legislate from the bench rather that take a strict constructionist interpretation of the law. I wonder whether or not this might be something the framers did not take into account. Who watches the watchers so to speak.

      On the topic of the states deciding – keep in mind that under Social Contract theory, individuals agree to surrender certain of their natural rights to live in the society. The problem is that we have large numbers of people in this country on both sides of the gun question who will never agree on the right approach. It is unfair for either side to enforce their will on the other, thus allowing folks to migrate into groups that share similar viewpoints and allowing those groups to determine how they wish to be governed and exactly what natural rights they are willing to give up seems the most democratic way to settle this.

      The trick is of course how to balance the rights of the people who choose to live in those states but don’t agree with the prevailing philosophy.

      • Here is a balance that permits a truly effective Laboratory of the States while maintaining whatever rights anyone wants except the right to invade others’ territory:

        Minimalist* Rules for Sortocracy:

        Sortocracy recognizes all States* have legitimate power to control the presence of individuals on their respective territories. This includes exclusion or exile of anyone for any reason whatsoever.
        Sortocracy requires that all States provide relocation for anyone, and their dependents, requesting emigration or being exiled. This does _not_ necessarily include relocation of capital assets claimed as “property” by those relocating. “Property rights” are defined by States themselves, not by Sortocracy. Their dependents include any children that have not been given up for adoption.
        Sortocracy grants States territorial value in proportion to a census of their members. Sortocracy issues cash flow to States for territorial rent. This money is backed by territorial value. States then competitively bid to rent territory from Sortocracy.
        New individuals qualify for admission to Sortocracy under one of 2 conditions:
        1 Inheritance: For example, an ancestor of a child may will his membership to a descendant.
        2 Territorial acquisition: A State admitting an individual as a new member of Sortocracy must add territory to Sortocracy, equal in value to a member’s territorial rent.
        If no other State will accept a relocating member, at least one State of Nature must be set aside for such members in which human group selection is suppressed by rules enforcing individual sovereignty, including death penalty and deadly natural duel as nature’s preferred dispute processing of last resort.
        This eliminates prisons, war over territory and tyranny in all its forms including liberal democracy’s tyranny of the majority limited only by a vague laundry list of selectively enforced “human rights”.

        *Sortocracy achieves the aim of radical minarchism by recognizing the individual’s right to territory is prior to group authority in the form of government, including any more elaborate notions of “property”. This is founded on the recognition that access to territory is a necessary condition of life and that, prior to group force, such as government, such access is often granted through natural aggression between individuals.

  4. Social Contract theory is a valid argument in favor of self-defense and gun rights because in modern American society, the government CANNOT guarantee your perfect safety, even while you are in your home – it cannot prevent you being the victim of robbery, rape, etc. Therefore, since the government’s ability to protect its own citizens is limited, citizens have the right to take reasonable measures to protect themselves. What is reasonable is often a matter of contentious debate, but given that:

    -Criminals will use force to obtain what they want
    -That force can and often is the use of a weapon
    -The choice of weapon is usually lethal such as a knife or firearm

    Citizens have the right to meet force with an equivalent force. No, the 2nd Amendment doesn’t mean everyone’s carrying a ICBM around (in their pants), but if criminals use guns, citizens are entitled to choose to defend themselves with guns.

    As a person with many anti-gun friends, I’ve walked through this argument with many of them and have gotten them to concede that “perfect safety” for my family cannot be guaranteed.

    I point out that in the neighborhood I live in (it’s not the best or the worst, just an average suburb) unfortunately just 10 minutes down the street, 2 armed criminals forced their way into a home – pistol-whipping the husband half to death, and then raping his wife in front of him while their 4 month year old baby slept in the next room. I tell my anti-gun friends that the day they can guarantee that will NEVER happen to my family is the day I will concede that it unnecessary for me to own a gun.

    • Citizens have the right to meet force with an equivalent force.

      In many states, the rule is “plus one.” Which means that the true defender can use as much force as the attacker plus a bit more. He slaps, you punch. He uses a knife, you use a gun. The “plus one” theory is based upon the notion that self-defense is a natural right, while attacking someone is a natural wrong.

  5. Also keep in mind Miller, in the 30s, was ruled that a short barreled shotgun was NOT protected under the 2nd Amendment, as it was of no use to a militia. Most of the arms the “Assault Weapons” Ban wants to bar from civilian use, however, ARE. Of course, military won’t use the AR-15, as it doesn’t fit their needs exactly, but it would be useful to a militia that does not have access to military arms.

    Also, Haynes v United States(1968) rules 7-1 in favor of Haynes, a convicted felon, stating that he was NOT compelled by law to register his firearms, as it violated his 5th Amendment protection against self-incrimination. So there you have it folks. The modern arms that are listed in the AWB are protected under the 2nd Amendment, and criminals that won’t register their firearms aren’t compelled to by law because of the 5th.

    GG, idiots in Congress trying to push this bit.

    • Haynes v. US is one of my very favorite cases to cite to anti-gunners. Right up there with Warren v. DC and Castle Rock v. Gonzales.

      I usually start with Warren v. DC. This gets them wringing their hands and the full tale of what was done to those three women causes jaws to drop. Then I explain that they called police not once, but twice, and the police just drove by…

      Then I step it up with Gonzales. At the point I get to the way her ex-husband killed the children, they’re about to break down. Upon hearing that the Supreme Court ruled that the mother of those children was, in no way, able to expect a police response as a duty, they’re ready to scream.

      Then I move in for the coup de grace with Haynes. Once they hear that criminals don’t have to register guns… they’re almost ready for a visit to a pshrink, they’re so unnerved.

    • I wholly agree on the courts. We could easily come out of this current crisis in decent shape, yet lose it all with a couple of flips on the bench, and have no likely way of regaining the ground for a generation.

      I would argue that the amendments place certain things out-of-bounds for the states and their diverse populations to experiment with. Free speech, to my knowledge, doesn’t suffer under the same lash as the 2A. More properly, the states should be playing with drug legalisation or alcohol regulation or tax codes, etc. Succeed or fail and build consensus for the nation, but not in the arena of natural rights. With the state laboratory model, you can always vote with your feet, which seems to be occurring across the country. I believe this is one of our nation’s great strengths.

      The catch, as you say, is the courts. There is little to check them when they stray from the strict interpretation of the constitution. The amendment path has not been successfully used for a while, which indicates a lack of consensus for the amendments that have been imposed. Unfortunately our political system has become adept at sidestepping the constitution through abuse of the powers of all three branches of the government. I guess you could argue that the government is violating its part of the social contract.

      edit: I are a computer idiot. This was meant as a reply to Mr. Barrett, up a couple of lines.

  6. I’ve always understood the basic right to be what I call “self-control”, with two reciprocal meanings: You have the fundamental natural right to control of yourself and your property, but you also have the fundamental natural responsibility to do so. And the only purpose of government is to provide a framework for resolving collions arising from execution of self-control.

    I have the right to buy any means of self-defense I want, but I also have the responsbility to use them safely. If someone taps me on the shoulder and I turn around with an Uzi and start spraying from the hip, I have not acted responsibly, and the victims or their family/friends or other agents get to file charges, and the government has to provide a framework for adjudicating those charges.

  7. The Supreme Court rules on the law, but neither that body nor the Congress, the Constitution, or any other document or group grants me my rights.

    The idea of a social contract is like an intersection. I stop at the red light to wait my turn, but the traffic light doesn’t tell me where I’m allowed to go or what I’m allowed to do when I get there. Even a one-way street doesn’t tell me that I can’t go to a particular place.

    The social contract requires us to take others into account, but that’s it. If my actions harm no innocent person, I am not violating the contract. Under its terms, I can own a gun. I can have it on my person–perhaps with the requirement to conceal it in populated areas. I can use it to defend myself if attacked. What I can’t do, in terms of the contract, is decide to get in some target practice at the local BigBox parking lot. I can’t legitimately choose to use my gun in a robbery. But as long as I’m not harming other good citizens, I’m within the bounds of the contract.

  8. The Supreme Court does not decide what the Constitution means. The Constitution is a very simple document to understand. The Supreme Court decides how the law of the land is applied, not what that law is.

    The Founders clearly stated that this is a “Nation of Laws, not a Nation of Men.” What you are suggesting is the exact opposite. Re-read that section you quoted about the Supreme Court’s duties. It clearly states that it is to decide all cases arising under the Constitution…not the Constitution itself.

    What you are advocating, sir, is rule by Case Law, what we have now, and what has gotten us into this mess in the first place. No matter how well-written your argument is, it is still invalid according to the way the Founders intended the country to work. The Founders would have no more surrendered their rights to interpretation by a court than I would be eligible for a relationship with one of those Israeli models R.F. is so fond of. To put it bluntly, what you have said is commonly accepted today, but is simply not true.

    Badger 8-3

  9. The author linked to a essay of Rousseau’s formulation of the Social Contract in a paragraph that discusses Locke and Hobbes. I would suggest that this is a problem because Locke, Hobbes, and Rousseau were not in agreement. Hobbes and Rousseau thought the State was just as long as it carried the General Will, and they made no allowance for the continuation of personal rights once the State was formed. Locke insisted that man’s rights are not totally surrendered to the State, and that citizens have the duty to oppose rulers that seek unlimited power.

    I would highly recommend for the author to look into the differences.

  10. I disagree with Mr. Barrett’s depiction of the Social Contract. He describes giving up any rights and freedoms that a majority of society demands — to be part of that society. That is simple mob rule and that is wrong.

    Here is a better description of the Social Contract. Members of a society give up the “freedom” to attack others, steal from others, damage other people’s property, use other people’s property without or even worse against their consent, tell other people what to do, etc. In other words we agree not to take actions against other peoples’ rights — we agree not to intentionally harm or control other people.

    The right to defend oneself from attack is never legitimately subject to majority approval. And the tools that one uses to defend oneself from attack is never legitimately subject to majority approval.

  11. What about a tyrannical gov? I thought the main purpose of the 2nd Amendment was as a check to a potential rogue state?
    The right to self defense is a human right beyond any written law and is not the main reason for the 2nd A (the ‘teeth’ of the constitution).


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