Thoughts on the Right to Bear Arms

The National Rifle Association held a continuing legal education workshop in Louisville today that drew lawyers from across the country. I don't own a gun and don't particularly like guns. But I went to this CLE (the best I've ever attended) because the second amendment is part and parcel of the Constitution -- unlike the nonexistent constitutional amendment that guarantees a right to abortion.

The rule of law requires us to give effect to all of the constitution, rather than picking and choosing among its provisions. Next month, the U.S. Supreme Court will rule on the meaning of the second amendment for the first time in seventy years; this is an area of the law that is unearthing tremendous research and primary sources about an amendment that most courts chose to ignore.

Ultimately, the second amendment is about freedom. Certainly that's why the Framers included the right to bear arms immediately after the first amendment right to free speech. Those philosophers who most influenced the Framers -- Locke, Montesquieu and Blackstone -- believed that there is a God-given natural right to self-defense. They did not distinguish between oppression by the government and oppression that the government fails to prevent.

America is one of the only countries in the world that guarantees the right to bear arms; it is an explanation for American exceptionalism.

The history of gun regulation in our country, however, reveals discrimination and oppression of unpopular races and ideologies. The earliest gun codes were intended to prevent slave insurrections. After the Civil War, free blacks were prohibited from bearing arms, but the Ku Klux Klan was not. Consequently, the Congress that passed the Civil Rights Act (Sec. 1983) and the 14th amendment did so, in part, to ensure blacks could bear arms.

More recently, the poor of New Orleans saw their own police department seize legal guns after Hurricane Katrina. Police confronted law-abiding citizens at gun-point and confiscated even registered guns. A NRA class action seeks an injunction to prevent that constitutional violation from recurring. But to this day, New Orleans police have not returned those weapons to their owners. At at time when government at all levels failed its citizenry, those same citizens were denied the right to protect their homes and stores from looters.

This CLE didn't make me want to take up hunting or buy a gun. But it did give me a tremendous respect for what the NRA does to advance the cause of freedom. Because even though I choose not to bear arms, I'm grateful that I have the right.