Discussions about the Second Amendment are almost always focused on a forensic parsing of its exact wording and a dissection of its historical context. Those approaches have not been persuasive to opposing sides.
I recommend a different approach. Perhaps it would be useful to first consider what the Second Amendment specifically does not say.
Here is what it does not say: “A well regulated militia, being necessary to the security of a free state, the people shall have the right to keep and bear arms.” Had it been written that way, then those who say that the arms right is derived from a (now outdated) need for local militias would have a good point. But that is not what the Amendment says. The wording refers specifically to “the right of the people to keep and bear arms” as something pre-existing. That is to say that the right to bear arms was not created by the Constitution, but rather acknowledged by it. Fundamental human rights are not created and granted by governments. They are inherent and adhere to all of us as individuals. As was made clear in the Declaration of Independence, the proper function of government is to protect human rights: “… they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men.…”
Rights, as such, can neither be granted nor taken away. They can only be protected or be violated.
It is defensible to argue that the right to bear arms is logically derived from the self-defense right implicit in the right to life. In that light, the remainder of the Amendment, “Shall not be infringed,” can be interpreted as limiting the power of government to restrict the possession of arms due to the necessity of a militia. But since there is now no need for local militias, it becomes reasonable to put restrictions on the ownership of firearms. That, of course, is where the tension begins. What arms may be legally possessed? Who may possess them?
The ACLU and others have argued that the ownership of arms should be a collective right, but the Heller decision described it as an individual right.
In the United States, gun ownership is so longstanding and so widespread that an exact count of how many firearms are in private hands is impossible. But let’s take a recent estimate of 70 million people who own firearms, with about 30 million additional people having access to those same guns. Working with the lesser number, one-tenth of 70 million is 7 million. One-hundredth would be 700,000. One-thousandth would be 70,000. One- ten-thousandth would be 7,000. Now, how many mass shootings have there been in the United States? Has it involved even one-ten-thousandth of American gun owners yet?
Of course, as John Donne wrote, “no man is an island … every man’s death diminishes me … because I am a part of mankind.” That, of course, includes the thousands of shootings that occur in this country on an individual level, to include suicides. That far larger number of gun deaths may be less dramatic than the mass shootings but are no less tragic.
The question remains: How far are we willing to go in our attempts to prevent things with which 99% or more of legal gun owners have never been involved?
Perhaps our expectations are unrealistic in terms of preventing future mass shootings. While there must be no end to enforcement and improvements, perhaps we should consider the possibility that, despite our best efforts, promises by elected officials to “make sure this never happens again” are unrealistic. Even the outright confiscation of all firearms would likely leave millions of guns in the hands of criminals and non-compliants.
If that is true, then perhaps the best approach, besides strengthening existing laws, would be a greater focus on defensive measures such as hardening soft targets and more emphasis on “see or hear something, say something.”
Filko lives in Williamsburg and has taught Economics and American Government. He is not an NRA member.