There is no individual gun right in the US Constitution
"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."
These 27 words comprising the archaic Second Amendment are at the heart of the most intense controversy in America today.
If the framers of the Constitution could be returned to life, they would no doubt resolve the debate by saying, "We did not create an individual right to gun ownership. Our purpose in crafting the Second Amendment was to promote the maintenance of well-regulated militias in the various states. That's why we wrote it the way we did."
This understanding of the amendment as a collective right prevailed through 130 years of U.S. Supreme Court rulings. Then, in 2008, Justice Antonin Scalia, a self-described "originalist" on the court, joined by his four conservative colleagues, decreed just the opposite that the Second Amendment grants an individual right.
That view, articulated in D.C. v. Heller, is now the law of the land, making gun violence ever more difficult to control. Ironically, it flies in the face of the amendment's original meaning.
Linguistic and historical evidence makes the framers' intentions clear. Linguistically, the amendment has two parts a preamble and a main clause. The preamble clearly describes the framers' purpose in enacting the second part.
This is the only amendment in the Bill of Rights that has this kind of structure, and so the founders surely put special stock in it. If they had not meant the right to be a collective one, they could have omitted the preamble and simply written, "The right to keep and bear arms shall not be infringed." But they didn't.
Another indication of this collective meaning is the amendment's use of the term people. That term is found throughout the Constitution and Bill of Rights, beginning with "We the People" in the very first sentence. It occurs eight times in all, each time referring to Americans communally, not individualistically.
When an individual is referenced, the word person is used instead, as in "No Person shall be a Representative who shall not have attained to the Age of twenty-five Yearsâ¦" (Art. I, Sec. 2). Such use occurs 28 times. Scalia himself acknowledges this distinction (pp. 6-7), if self-contradictorily (cf. p. 5).
In a footnote (p. 4), Scalia justifies his individualist interpretation as follows: "The settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms."
But as I've shown, the enacting part is not expressed in clear, unambiguous terms. Therefore as the four dissenting justices argued the preamble should control the enacting part, giving it a collective meaning.
Does the historical evidence gibe with this interpretation? Indeed it does.
In those days there was a clear civic need for our young nation to have "well-regulated militias." According to the framers' writings, citizen militias were a cost-effective way of defending the country from Indians, foreign invasion, insurrections such as Shay's Rebellion in 1787 and other threats without having a large standing army capable of overthrowing the government.
Because citizen militias were essential also to Southern plantation owners in preventing slave uprisings, the inclusion of the Second Amendment was a key political concession to the antifederalists. Earlier drafts of the amendment all included the militia justification.
The framers of the Constitution never intended an individual right to own guns. Unfortunately, they're long gone and five radical revisionists on the Supreme Court and the NRA are now in the driver's seat.
Thomas Huckin is a professor of English and writing and adjunct professor of linguistics at the University of Utah, specializing in public discourse analysis.