Saturday, December 23, 2017

Is the Second Amendment Unique? - By Sam Bocetta

The case for American exceptionalism is often overstated. It is true that our Constitution, at least when it was first written, was a revolutionary document, in both senses of the word: it represented a huge shift in the way that the state was conceived, but also an attempt to free a citizenry from perceived oppression.
Because of the unique historical circumstances in which it was written, the Constitution put in place laws that appear to be similarly unique. However, when looked at in a historical perspective, many of these (such as the right to free speech) are unique in extent rather than quality: they make a right that was de facto in early modern England into a de jure provision.
There is one part of the U.S. Constitution, however, that may well be totally unique: the Second Amendment.
The 27 words that make up the amendment, “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,” are perhaps the most controversial, and perhaps the most misunderstood, in our entire Constitution. I’m not going to add another interpretation to the hundreds already available. Instead, I want to look where the amendment came from, and then look at whether it is, indeed, unique.
The Historical Context
Given the context in which the constitution was written -- that of a new country keen to free itself from the clutches of an overbearing English tyranny -- it is strange that the Second Amendment is actually based on English law. Specifically, the English Bill of Rights of 1689 codified what was regarded as a natural right to self-defense. This bill essentially limited the power of the English king to disarm his subjects, after Charles II had tried to disarm Protestants, whom he viewed as a threat to his power.
Interestingly, the same debate that rumbles on today about the importance of a “well-regulated militia” dates back to this time. In District of Columbia v. Heller(2008), the question of whether English Bill of Rights created a new right, or merely codified an existing one, was tackled. The Supreme Court found that the English right at the time of the passing of the English Bill of Rights was "clearly an individual right, having nothing whatsoever to do with service in the militia," and therefore predated the bill.
In any case, by the time the Second Amendment was passed in 1791, the understanding of the earlier bill had developed. Before the U.S. became independent, the American colonies had an approach to firearms regulation that had been inherited from English Common Law. By 18th-century England, for example, armed travel had been limited to a few well-defined occasions such as assisting justices of the peace and constables. Members of the upper classes also had a limited exception to travel with arms. What we would now consider standard concealed carry was even more restricted back then, and the city of London banned public carry of handguns entirely.
In short, the Second Amendment developed from English common law, and is therefore not unique in a historical context. However, the fact that the amendment appears in a constitution, and can therefore not be watered down by successive legislation, means that it has slowly become unique as the laws it was based on were themselves changed.
The International Context
Another way of assessing the uniqueness of the Second Amendment is to look at whether there are any other countries that currently guarantee a right to bear arms in their constitutions. This immediately rules out many countries, and notably UK, simply because they do not have a written constitution.
Interestingly, the uniqueness of the Second Amendment has made occasional appearances in political speeches in recent years. Marco Rubio claimed in aspeech to the NRA in 2014 that the amendment was unique among modern nation states.
Was he right to say this? Yes, broadly.
Very few constitutions have ever contained an explicit right to bear arms, and those that do also include restrictions that make them quite different from the Second Amendment. In a New York Times op-ed from 2013, Tom Ginsburg and Zachary Elkins concluded that there are only two countries where a comparable right is afforded: Mexico and Guatemala.
Here are the relevant clauses in those constitutions:
• Guatemala Article 38: "The right to own (‘tenencia’) weapons for personal use, not prohibited by the law, in the place of inhabitation, is recognized. There will not be an obligation to hand them over, except in cases ordered by a competent judge."
• Mexico Article 10: "The inhabitants of the United Mexican States have the right to possess arms in their residences for their protection and legitimate defense, except such as are expressly forbidden by law or which have been reserved for the exclusive use of the Army, Navy, Air Force and National Guard. Federal law will determine the circumstances, conditions, requirements, and places in which the bearing of arms by inhabitants will be authorized."
Superficially, these clauses look like the Second Amendment. However, read them closely and a major difference is apparent: both give government and/or the judiciary the right to remove arms from its citizens.
The Verdict
The Second Amendment, in contrast to the provisions of the Mexican and Guatemalan constitutions, explicitly bars the government from infringing the right to bear arms. In this sense, it is unique: rather than permitting individuals to bear arms at the whim of the state, this right is regarded as “natural”, and therefore outside the power of the state.
The strange paradox here is that regarding the right to self-defense, and by extension the right to bear arms, as a “natural” right is a philosophical position inherited from England, and that in that country this right was gradually diminished by hundreds of years of extra legislation. In this sense, the Second Amendment actually may be regarded as unique in a historical sense, in that it represents an 18th-century view of human rights. Of course, it is no less worthy for that: if the right to self-defense is one inherent to humanity, then it should be protected in every state and era, irrespective of the views of the government.