Leiden Law Blog

The Unamendable Right to Bear Arms

Posted on by Reijer Passchier in Public Law
The Unamendable Right to Bear Arms

The second amendment to the Constitution of the United States is without a doubt one of the most unique and controversial constitutional provisions in the world. It reads as follows:

“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.”

The exact meaning of this provision has been hotly debated throughout American history. Some have argued that the Second Amendment only protects the right to bear arms of those who serve in the militia (similar to the today’s National Guard). Others believe that it grants citizens an independent right to own guns. In District of Columbia v. Heller (2008), the Supreme Court ruled in favour of the latter position holding that ‘the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia’.

As a result, overall American firearm restrictions are extremely slight compared to most other countries. For example in Texas, where I am staying, people are allowed to own almost every kind of handgun, shotgun and rifle without registration. After a half day course, citizens may carry a ‘concealed’ handgun. Rifles or shotguns can be carried as long as they are not displayed ‘in a manner calculated to cause alarm’. Firearms are only prohibited in ‘sensitive places’ such as school and governmental buildings.

Every dramatic incident related to the private ownership of guns sparks new debate about the tenability of the right to bear and keep arms in modern times. The 2013 Sandy Hook Elementary School shooting prompted President Obama to promise stricter gun control laws. But it is unlikely that he will be able to fulfill this promise. It is almost impossible to repeal the Second Amendment. Such a measure requires the support of two thirds of both houses of Congress and three fourths of the several states’ legislatures. Without formal constitutional change or a different interpretation by the Supreme Court, the Second Amendment renders any serious restriction on gun ownership unconstitutional. Meanwhile, the powerful pro-gun lobby of organisations such as the National Rifle Association seize every opportunity to persuade states to even further expand gun carrying privileges. Recently, the Georgian legislator adopted a bill that goes so far as to allow school districts to arm teachers and to permit gun owners to take their weapons into churches, bars and government buildings.

I write this blog in a Texan café, so I would rather not take the risk of expressing a too strong opinion on the American right to bear arms. It seems to me, though, that not the substance, but the practical unamendability of the Second Amendment itself causes the greatest deal of trouble. The unchangeable nature of the provision makes it almost impossible for Americans to renegotiate the issue and to walk a reasonable middle course. The debate may therefore teach a more general lesson, namely that drafters of a constitution should think twice before they deeply entrench a certain right. What seems natural to one generation, may be highly problematic for the next.

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