By Andrew R. Graham
The Second Amendment to our Constitution is the basis by which gun advocates assert a personal and immutable right to own and carry firearms. It is an important question, because if not specifically enumerated, the “right” to own firearms becomes a matter that is reserved for regulation by the states under the 10th Amendment.
A close look at the history and the issues that surrounded the drafters of the Second Amendment strongly suggests that two rights – of self-defense, and of owning weapons – already existed in common law and were not in question when the amendment was added in 1791. Weapons, including guns, were simply personal property, no different from plows and pitchforks, all of which became protected from “unreasonable seizure” by the Fourth Amendment.
The choice of words used in the Second Amendment should be considered carefully. In “A Dictionary of the English Language” by Samuel Johnson in 1755, “keep” is defined as: “1. To retain, not to lose. 2. To have in custody.” Nowhere in the some 40 listed nuances of the verb “to keep” is there any reference to owning. It seems as used in the Second Amendment the words “to keep and bear arms” most likely meant: “to retain and carry arms,” which makes sense if the purpose of the amendment is to enable the states to establish militias that federal authorities could not disarm, regardless of whether the arms were personal property or provided by the state.
The amendment contemplates “well- regulated” locals, who some believed were needed to fend off uprisings of the sort seen in Massachusetts with Shea’s Rebellion in 1786, and in the streets of Paris in 1789. Others preferred militias as an alternative to an expensive federal standing army that might also become the tool of a tyrant as with James II in England. So it was critical that militias could not be disarmed by federal fiat.
An early draft of the amendment included an exception for conscientious objection, which suggests the authors were very much more concerned with militia service than with gun ownership. In this light, it makes little sense that the intent was to establish a right that already existed, so I find it hard to surmise that the Second Amendment was intended to create such a right.
As personal property, it seems clear that guns are subject to regulation when the Fourth Amendment is subordinated by the need to protect “the people’s” health and safety. Such regulation must be balanced against the countervailing right of self-defense, as it was by the Supreme Court in the Heller case. However, it follows that if no specific right of gun ownership is enumerated in the U.S. Constitution, either by the Second Amendment or anywhere else, then the state of New York is well within its prerogatives to implement the NY SAFE Act as a balance well struck.
Andrew R. Graham is a lifetime gun owner and retired Navy commander.