Right Versus Duty: a Legal Gunfight
Modern Adjustments to the Scope of the Second Amendment
Introduction
“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.” — Second Amendment, the U.S. Bill of Rights
On June 21, 2024, the U.S. Supreme Court pronounced judgment on United States v. Rahimi that, following a time-honoured tradition of setting conflicting precedents on the matter of the ownership of arms in the United States of America, upheld the federal law 18 U.S.C. §922(g)(8), which prohibits persons subject to domestic violence restraint orders from possessing firearms.
So, where does the problem come in? When there is judicial dissent concerning the position that the law in question is violative of both the 2nd Amendment and a previous Supreme Court judgment.
Before this dissertation analyzes the problems of jurisprudence associated with the Second Amendment, it is imperative to establish that the fundamental statement itself is but a placeholder: for all its significance with respect to the development of U.S. law, the Second Amendment is ultimately of little substance or nuance without the attunement that is provided by both Congress and the Courts. The reasoning behind this is that a status quo established in the 18th century cannot remain wholly unchanged, without reform or review, in the transient world of the 21st century. It is therefore that much argument has taken place over the centuries upon the scope of the Amendment, giving to us various approaches when analyzing the subject matter at hand.
The Central Questions of the Second Amendment: a Review
When scrutinising the various conflicts that surround the Second Amendment, one can identify the two divisions that garner the most argument: first, the position that any judicial decision must conform to relevant historical traditions established by the Constitution of the United States, and in turn the Bill of Rights in its plain text, and second, that there exists a nexus of conflict between the rights of the citizenry and the duties of the State, id est, the right of the former to bear arms and the duty of the latter to maintain public order and to ensure the safety of the body politic. This discourse shall aim towards deliberating upon these two issues, and attempt to steer itself towards a jurisprudence that is accommodative of both.
Analysing the Importance of the Historical Tradition of Jurisprudence
In the year 2022, the conservative Justice Thomas authored a judgment on the matter of New York State Rifle & Pistol Association, Inc. v. Bruen, wherein he established that the Second Amendment, in its plain form, is protective of an individual’s right to bear arms, and so is the Constitution in a presumptive fashion. Therefore, any firearm regulation must be in tandem with the nation’s historical tradition of firearm regulation, or shall be declared nullified by the auspices of the Court.
Such observations, however, warrant hesitation. Why? While the preservation of the citizenry’s rights, which includes that of bearing arms, is something that cannot be transgressed without just cause, is a history-centric fashion truly the way to go about with the determination of the legitimacy of legislation that is reflective of the present, not of the past? The fact of the matter is that many justices do not deem it to be so: some have gone so far as to explicitly state that not only does history have a role to play in Second Amendment jurisprudence, but that history is the only method to determine the constitutionality of laws implicating Second Amendment rights. This is something that was illustrated in Justice Thomas’ authorship of Bruen, not to mention his dissent in Rahimi also, and it is here that the first central problem arises: by strictly limiting itself to historical documents for legislation on firearms regulation, Congress is ultimately faced by a position where it can no longer keep up with the status quo modernisation sets every day: why? Quoting Posner, it is improper to rely solely on the constitutional provision of the Second Amendment which was ratified two centuries ago, dealing with a subject that has been transformed in the intervening period by social and technological change, including urbanization and a revolution in warfare and weaponry. Even more so, it is impertinent to view weapon ownership solely with respect to the historical ownership of firearms, because the scope of weaponry has changed drastically from the late 18th century, meaning that the standards that were applied to the ownership of swords and muskets may not be applicable to that of modern arms.
It is therefore that the judiciary must adopt a different approach when reviewing the legitimacy of a law that is passed by Congress: instead of relying solely on the Second Amendment for reference (which, as established earlier, is but a placeholder), the courts must adopt a more holistic approach that takes into consideration not just the nature of arms, which is but one part of the Second Amendment, but also of the scope of their usage by a common citizen of the United States of America.
The Nature of the Right to Bear Arms
Before further submission, it should be noted that the Second Amendment is a right of fundamental measure, for it is ultimately a part of the foundation of the United States of America: such was established in McDonald v. Chicago, where it was also noted that such is essential for the maintenance of the American system of ordered liberty. However, it must be considered that in any community, ordered liberty does not equate to absolute freedom, for there exists a threat that such may violate other founding principles of the State such as the guarantee of life.
Putting this in context, the Rahimi judgment established that while the right to bear arms is fundamental, it is not absolute, and can be deprived when there is enough evidence to establish that the ownership of arms by one person could threaten the life and physical safety of another, as was noted in Lewis v. United States.
The Supreme Court recognised that “upon the principle of self-defence, of paramount necessity, a community has the right to protect itself against an epidemic,” in Jacobson v. Massachusetts. Therefore, it is only natural that Congress introduces laws that protect the American community from the epidemic of gun violence3, wherein the view of absolute ownership of arms, i.e., notwithstanding who the owner is, or what his background is, is violative of the State’s primary purpose of the defense of its constituents, which, by the way, is the very reason the Second Amendment was established in the Bill of Rights itself: it was a means to legitimize and ensure a sense of community defense through which the American people could collectively defend themselves against any aggression, not one which could be used in the future to kill one another. This was the historical purpose behind the Second Amendment, something that Justice Thomas failed to realise in both Bruen and Rahimi.
The Nature of the Right to Bear Arms
Ending this dissertation, it is imperative to establish that the U.S. Judiciary must not only review its modus operandi of jurisprudence by relying solely upon historical documents to reach a judgment, but must also, for the sake of the American people’s rights of weapon ownership and life, adopt a consistent position upon the issue whether the right to bear arms is fundamental yet conditional, or absolute without restraint.
