Understanding the right to keep and bear arms

The tragic killing of 17 persons in Parkland, Florida last month has again, rightfully, raised the public debate on whether there needs to be legislation that further restricts the acquisition and use of firearms. The fact that a 19-year-old with mental health problems could acquire a semi-automatic AR-15 without any difficulty, among other inexplicable events, raises serious questions that need to be addressed by Congress and state legislatures.

As to be expected, the discussion inevitably ends up pitting the claim for greater protection and security by a large sector of society against the right to keep and bear arms as guaranteed by the Second Amendment. This debate — and the constitutional issued involved — produces a sense of political vertigo.

{mosads}The Second Amendment declares, “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.” A quick reading of this amendment would seem to suggest that the right to keep and bear arms is conditioned on the necessity of having a well-regulated militia for the security of a free state.

This has been the interpretation favored by those who have an interest in limiting individual rights in matters related to firearms. This interpretation, of course, upturns the fundamental purpose of the Bill of Rights, which aims to protect and guarantee individual rights from the “tyranny of the majority”.

It is curious to note how those that favor an expansive reading of the First Amendment, for example, become literalist upon reading the Second Amendment. Free speech and the free exercise of religion are understood as broadly as possible in furtherance of the political values that inform liberalism. Contrary to this approach, the right to keep and bear arms is viewed exclusively from the vantage point of the state. How we justify our interpretative approaches ordinarily has little to do with theoretical coherence and more to do with the furthering of our interests.

On the other side of the discussion, many claim that the Second Amendment must be understood in its original sense and that the right to keep and bear arms is a fundamental individual right. How we distinguish fundamental constitutional rights from non-fundamental constitutional rights is an exercise in clairvoyance not available to most of us.

In District of Columbia v. Heller in 2008, the Supreme Court declared a District of Columbia statute unconstitutional insofar it prohibited the possession of a handgun in one’s residence for purposes of self defense. After a historical review and textual analysis of the text, Associate Justice Antonin Scalia concluded that the Second Amendment needs to be understood as an individual right, not conditioned to the presence of a well regulated militia. The opinion recognizes that this fundamental right is not unlimited, and that nothing in it should be construed as bringing into question traditional prohibitions of criminals or the mentally ill of having access to firearms. In McDonald v Chicago in 2010, the Supreme Court extended the Second Amendment to the states through the Fourteenth Amendment.

Nothing in these two opinions preclude Congress and the states from legislating added restrictions to the acquisition of firearms, as long as they do not infringe on the right to keep and bear handguns in one’s residence for purposes of self defense. In matters of the Second Amendment, the Supreme Court has avoided setting a constitutional test as it has for so many other constitutional provisions, preferring a case by case analysis with Heller and McDonald serving as a benchmark. The debate on gun control is not about constitutional or statutory authority, but rather of political willpower or lack thereof.    

It begs the question: Which is more fundamental, the rule of law or the rule of expediency?  

Andrés L. Córdova is a law professor at Inter American University of Puerto Rico,. where he teaches contracts and property courses. He is also an occasional columnist on legal and political issues at the Spanish daily El Vocero de Puerto Rico.