Welcome to From Insults to Respect. Today, we take up a country-wide emotionally charged conflict between those who believe the Second Amendment allows for what they refer to as some “reasonable restrictions” of arms such as banning AR-15 weapons, and those who believe the amendment provides an inalienable right to own arms with absolutely “no restrictions.” Here’s what the Second Amendment actually 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.

Let’s begin by taking a look at the major arguments being made by those on both sides. Then I’ll conclude with where I come out in dealing with this conflict.

The Arguments

The ‘Well Regulated Militia” Arguments

The Second Amendment begins by explaining the necessity for the amendment–“A well regulated Militia, being necessary to the security of a free State…” Here we see that the reason why the Framers included this amendment to the Constitution was because of the specific needs of a well regulated militia. This explaining is very different than the other amendments which give no explanation for each of them because each are viewed as “self evident.” For example, consider the wording of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Notice that this amendment does not explain any reason for these Government restrictions. Also note that some aspects of this amendment is not absolute. For example, you can’t yell fire in a crowded theater, defraud someone, or participate in planning a murder and then claim the government can’t penalize you because you are protected by the amendment’s free speech clause.

Also notice that this amendment allows for the people to peaceably assemble, and to petition the Government for a redress of grievances. Thus, you can’t have people who formed a militia violently attacking the Government with arms and then successfully claim that since it was carried out by a well regulated militia your use of these arms is constitutionally protected. As a result of the January 6, 2021 assault on the U.S. Capital, over 800 people have been charged for crimes for their violent acts and more indictments are forthcoming.

The amendment immediately after the Second states:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Like the First Amendment, the Third Amendment, provides no explanation. Given this “no explanation” style in the other amendments as well, we are left wondering why the Second Amendment veers away from this “no explanation” style. If the Framers just wanted to say all people have the right to carry and bear arms, they could have left out the first part of the amendment that refers to a well regulated militia, and instead have written:

The right of the people to keep and bear Arms, shall not be infringed.

Such wording would be consistent with the “no explanation” style used in the other amendments. If, instead, the Framers wanted to indicate only those people in a well regulated militia have a right to bear arms, they could have precisely worded the Second Amendment as follows:

A well regulated Militia, being necessary to the security of a free State, the right of the people in a Militia to keep and bear Arms, shall not be infringed.

Without such clear wording, we are left with ambiguity. It is nevertheless reasonable to lean toward the following theory: The Framers chose to use the militia clause in the Second Amendment to indicate that it applied to people in a well regulated militia. This theory is supported by the fact that the Framers were not typically given to providing explanations for why the people have the rights enumerated in the Constitution, and yet they chose to include one in the Second Amendment. Moreover the Framers were clear that only peaceful means could be used to assemble, and to petition the Government for a redress of grievances. Bearing arms at such events runs counter to this peaceful intent. Thus, the Framers did not view the bearing of arms as an absolute right, limiting its use when assembling, and petitioning the government.  Finally, there are other clauses in the Constitution that in practice are not absolute, and reasonable modifications to their wording have occurred.

Major Supreme Court Decisions

United States v. Miller, Decided in 1939. There are three major Supreme Court decisions that reveal how the Justices’ views on gun rights developed over the years since the Constitution was ratified. Let’s begin with the U.S. v. Miller case.

sawed off shotgun

Back then, the Court sustained a statute requiring registration under the National Firearms Act of sawed-off shotguns. After reciting the original provisions of the Constitution dealing with militias, the Court observed that [w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view.

The Court also opined that the Second Amendment referred to arms of the kind in common use at the time, referring to the time the Amendment was ratified–December 15, 1791. With this in mind, consider the arms that had been in common use in a militia back then.

People who had access to a handgun could only fire a single shot before reloading. People who had access to a long barrel gun had muskets. A musket fired a single lead ball before it needed to be reloaded to fire another. Black powder was the explosive material used which commonly fouled the musket after repeated firing and they were notoriously inaccurate when aimed at a target. Reloading required that a person carry out the following steps:

1. Reach in the cartridge box with leather casing; it had a long flap to make sure the black powder within the cartridges remained dry. Remove one of the cartridges and bite down on the tail of the cartridge to tear it open.
2. Half cock the musket by pushing back on the hammer with flint attached (called a dogshead). Push the frizzen forward, opening the pan (or flash pan) and pour a small amount of black powder from the cartridge.
3. Pull the frizzen back, shutting the pan – the metal lip of the frizzen is now vertical. The weapon is now primed and the musket may be turned around without spilling the powder out of the pan.
4. Hold the musket with the muzzle pointing up.
5. Pour the rest of the powder from the cartridge into the barrel.
6. Insert a lead ball into the barrel.
7. Push the cartridge paper (called wadding) into the barrel and ram the wadding and ball down the barrel to the other end (breech) where the spark will take place. The charge is now properly seated.
8. Replace the ramrod in the channel.
9. Lift the weapon and pull back on the dogshead, fully cocking it.
10. Raise the musket to a firing position.
11. Fire the musket.

Such weapons are dramatically different than today’s AR-15 weapon that can fire numerous shots far more powerfully and accurately during the same amount of time that it takes to fire one round with a musket and then to reload.

District of Columbia et al. v. Heller. Decided in 2008.  In contrast to the argument that the Second Amendment refers to weapons that were only available at the time when the Second Amendment was ratified, a more recent case before the Supreme Court provided a different interpretation. Relying largely on the history of common law, which often gave people the right to bear arms for self protection, particularly in their own homes, and for hunting, opined that:

Some have made the argument, bordering on the frivo­lous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not in­terpret constitutional rights that way. Just as the First Amendment protects modern forms of communications…applies to modern forms of speech… the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

At the same time, the Court recognized that,

Like most rights, the right secured by the Second Amendment is 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.

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….

It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have lim­ited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC., ET AL. v. BRUEN, SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL, Decided June 23, 2022. In the most recent gun decision by the Supreme Court, it ruled that:

Although Heller concerned the possession of a handgun in the home, the key point that we decided was that “the people,” not just members of the “militia,” have the right to use a firearm to defend themselves. And because many people face a serious risk of lethal violence when they venture outside the homes, we now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.

The definition of a handgun is “a short-barrelled firearm that can be held and used with one hand.

The decision goes on to say,

The Second Amendment guaranteed to “all Americans” the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions, Heller, 554 U. S., at 581. Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials.

In Justice Alito’s concurring opinion, he wrote, “Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess.”

Buffalo supermarket shooting victims

Summarizing this section, it provides a description of the dramatic difference between the kinds of weapons in use when the Framers wrote the Second Amendment and an AR-15 weapon. The above quotes from the Supreme Court decisions lays out how the court’s views on gun possession changed over time. First, it referred only to militias. Then, in a more recent decision, it said it refers to even modern guns that are commonly used for self-protection in one’s home. Then, in the most recent decision, it declared the Amendment also permits people to carry guns for protection outside of the home.

With regards to the Supreme Court’s decision concerning the type of weapon permitted for self protection, the only weapon mentioned is hand guns. As far as what is permitted with regards to obtaining such weapons, and what other weapons could be used, it states it is subject to certain well defined restrictions.

Arguments Against the Supreme Courts’s Decision

One set of arguments against the Supreme Court’s decision utilizes well documented statistics indicating the harms of having so many weapons in the hands of people. For example, the Violence Policy Center, in 2015, provided statistics that showed that in 2012, there were 259 justifiable self-defense homicides in which victims turned the tables on the assailant. However, the Center also reported these 259 justifiable homicides should be balanced against the statistics indicating the thefts of about 232,000 guns each year. That’s a ratio of one justifiable homicide for every 896 guns put into the hands of criminals.

Moreover, researchers from Boston University investigated the relationship between gun ownership and gun homicides from 1981-2010 in all 50 states. They said they found a “robust correlation” between the two factors. “This research is the strongest to date to document that states with higher levels of gun ownership have disproportionately large numbers of deaths from firearm-related homicides.”

In a summary of relevant peer reviewed studies by Scientific America, it found:

Sandy Hook victims

In a 2015 study using data from the FBI and the Centers for Disease Control and Prevention, for example, researchers at Boston Children’s Hospital and Harvard University reported that firearm assaults were 6.8 times more common in the states with the most guns versus those with the least. Also in 2015 a combined analysis of 15 different studies found that people who had access to firearms at home were nearly twice as likely to be murdered as people who did not. 

Further supporting this evidence that more harm than good comes from unrestrictive gun ownership, is well displayed in the following graph.

Here we see that countries with far more gun restriction than the United States have a small fraction of gun homicide rates. United Kingdom and Japan, which have the strictest gun restrictions have the tiniest fraction of such homicides. Meanwhile, nearly 40,000 Americans died because of gun violence in 2019.

Now, keep in mind, if you will, that the reason given by the Supreme Court is for self-protection. The AR-15 weapon is way too dangerous for such a purpose. If one shoots at an assailant in an apartment, the shot can penetrate not only through a wall into a neighbor’s apartment, but right through another wall into another apartment, thus endangering the life there. Moreover, shooting at someone with this weapon outside, risks killing someone more than 200 yards away who happens to be in the line of fire.

The mathematics describing the pros and cons of the no restrictions position when it comes to AR-15 is, to my mind, simple to calculate. One would simply add up how many lives were saved by non-law enforcement personnel who used an AR-15 gun to thwart a person seeking to harm someone versus how many lives were lost because citizens can now freely purchase AR-15 weapons.

Armed bystanders who are not security guards or off-duty police officers successfully ending a violent attack is a very rare occurrence according to the relevant data summarized by the New York Times—12 cases out of 433, and none of these cases involved an armed bystander using an AR-15 weapon. In fact, having more than one armed person at the scene who is not a member of law enforcement can create confusion and carry dire risks. An armed bystander who shot and killed an attacker in 2021 in Arvada, Colorado, was himself shot and killed by the police, who mistook him for the gunman.

In contrast to the evidence that AR-15 weapons are not being used by non-law enforcer professionals for self defense or protecting others during an attack, they have been used by mass shooters numerous times. After shooting 471 people at the Route 91 Harvest Festival in Las Vegas from a hotel room overlooking the festival, the gunman died by suicide before the police arrived to his room. The gunman was in no way defending himself against the victims who were innocently enjoying a music concert. More recently, we have seen the aftermath of one massacre after another in which the shooters used AR-15 guns that occurred in a supermarket, school buildings, and many other places.

The counter argument to these statistics is that they don’t include the following theory. Because people desiring to act violently know that so many of our citizens own guns this actually reduces violence. Such violent people, so the argument goes, refrain from acting out their violent desires out of fear that a citizen with a gun will end up killing them. This plainly implies that the more guns in a community, the less violence will occur. However, the statistics dramatically indicate the very opposite occurs.

Justice Stephen Breyer

Interestingly, the dissenting opinion by Justice Breyer in the most recent Court decision made extensive use of many of the same arguments against the 2022 ruling as I made above, but the majority disposes all of them with the following statement:

AR-15 weaponsGun restrictionsSecond Amendment