A Rights Theory Analysis of the Second Amendment By. Najwa Sharpe

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A Rights Theory Analysis of the Second Amendment

4/29/2013



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THE BACKDROP

On December 14th, 2012 America lost twenty first graders in a mass shooting in

Newtown, Connecticut. That tragedy and a long list of others forced America to assess the gun

culture in our country. At the center of our gun culture is the Second Amendment right to bear

arms. This paper will look at how recent firearm related deaths have shaped the current gun

rights debate. The primary types of gun violence explored in this paper are mass shootings and

urban gun violence.

The FBI describes a mass shooting as any shooting where four or more people are killed.

Since 2006 approximately 900 people have died in over 174 mass shootings. Of those mass

shootings, four have struck a particular never in our national discourse.

Virginia Tech

On April 16th, 2007 Seung Hui Cho killed 33 people on the campus of Virginia Tech.

Cho’s rampage started in a dormitory, and ended two hours later in the school’s engineering

building. Cho used a 9MM semiautomatic handgun, and a .22 caliber pistol. Cho purchased the

pistol online and purchased the handgun in person at a Virginia gun shop. Only the in-store gun

purchase required Cho to submit to a background check. The background check did not reveal

Cho’s prior mental disorders.

Tucson

On January 8th 2011 Jared Loughner went to a constituent meet-and-greet for

Representative Gabrielle Giffords. Loughner shot 20 people with a Glock 19 semiautomatic

handgun. Six of Loughner ’s victims succumbed to their injuries. Representative Giffords



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survived but was gravely injured. Loughner purchased the guns used in the Tucson rampage in

Arizona after passing a background check. After his arrest psychiatrists diagnosed Loughner

with schizophrenia. There are no records that suggest doctors diagnosed Loughner with any

mental disorders before the murders.

Aurora

On July 23, 2012 James Holmes walked into an Aurora Colorado movie theater and

opened fire on unsuspecting patrons. Clothed in a bullet proof vest and leggings, Holmes used a

semiautomatic military style assault weapon with a 100-round magazine, a 12-gauge shotgun

and a .40 caliber semiautomatic pistol. Holmes killed 12 people and wounded 58 others before

police arrested him. Holmes purchased the weapons online and in-store. He had no criminal

record at the time of the in-store background check. Holmes, a college student, sent a notebook

of illustrations to his university’s counseling office before the murders. The illustrations were

strikingly similar to the shooting.

Newtown

On December 14th, 2012 Adam Lanza murdered his mother. He then drove to Sandy

Hook Elementary where he killed 26 people. Lanza killed 20 children and six educators before

killing himself. Lanza entered the school with a .223 caliber XM15 rifle with a 30-round

magazine, a 10MM handgun, a 9MM handgun, a shotgun with two 70-round magazines, and six

additional 30-round magazines. All of the weapons used in the shooting were leaglly purchased

by Lanza’s mother. Lanza’s mental health history included Asberger’s and Sensory Integration

Disorder. Neither disorder has been linked to violence.



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Urban Gun Violence

While mass shootings rightfully capture the public’s attention, an equally tragic situation

is unfolding every day on our nation’s streets. The epicenter of the urban gun violence epidemic

is Chicago. Although Chicago has only a third of New York City’s population, in 2012 it far

exceeded New York City’s number of firearm related homicides. Authorities blame gangs for the

cities 500 homicides. Despite that, it was not until February of 2013 when the gun violence in

Chicago struck a nerve with the nation. Hadiya Pendleton, a majorette who performed at

President Obama’s 2013 inauguration, was gunned down on her way home from school.

Pendleton’s f amily described her as kind and filled with promise. Not all victims of urban gun

violence fit that description. Two months after Pendleton’s murder, a 15 year old suspected gang

member was gunned down blocks from President Obama’s Chicago home with much less media

coverage. Victims with a criminal history may be harder to embrace. But does that make their

lives any less valuable?

The Response

The nation is locked in a heated debate about how best to respond to these tragedies. The

response falls into two camps — those that believe in restricting the right to bear arms, and those

that do not. President Barack Obama and some in his party support the idea of curbing the right

to bear arms in order to reduce gun violence. In January 2013 President Obama released his plan.

Here are the highlights:

Requiring criminal background checks for all gun sales, including

those by private sellers that currently are exempt.

Reinstating and strengthening the ban on assault weapons that was

in place from 1994 to 2004.

Limiting ammunition magazines to 10-rounds



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Providing $30 million in grants to states to help schools develop

emergency response plans.

Providing financing to expand mental health programs for young

people.

Releasing a letter to health care providers clarifying that no federal

law prohibits them from reporting threats of violence to law

enforcement authorities.

Proposing a rule to give law enforcement authorities the ability to

run a full background check on an individual before returning a

seized gun.

Increasing criminal penalties for "straw purchasers," people who

pass the required background check to buy a gun on behalf of

someone else.

Acting on a $4 billion administration proposal to help keep 15,000

police officers on the street.

Thus far the assault weapons ban, and the enhanced background check proposals have garnered

the most attention.

Gun rights advocates believe that many of the President’s proposals will do little to

prevent mass shootings and urban gun violence. Republican congressional leaders argue that gun

control should not infringe upon the rights of law-abiding firearm owners. Law-abiding firearm

owners, Republicans argue, primarily use guns for self-defense and recreation. In the 1980s

Republicans embraced the interpretation that the Second Amendment conferred, “an individual

right [to] the American citizen to keep and carry arms in a peaceful manner, for protection of

himself, his family, and his freedoms.” The National Rifle Association (NRA), a leading gun

rights group, led the charge for gun rights following the mass shootings of 2012. “The only way

to stop a bad guy with a gun is with a good guy with a gun,” said NRA Executive Vice President

Wayne LaPierre. The NRA took that idea a step further in its April 2013 report on school safety.

In that report the NRA recommends teachers arm themselves in the classroom. The NRA would

also like to see the government focus on the prosecution of violent criminals, and correcting



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flaws in the nation’s mental health system. Another emerging concern for gun rights advocates is

privacy. The American Civil Liberties Union argued that the creation of a national background

check system could allow the government to compile a national database of gun owners. They

fear that the database will be used for limitless surveillance rather than prevention of gun

violence.

America’s demand for answers has opened the door for a critical look at the right to bear

arms. With this background in mind this paper will first describe what a right is, the structure of

rights, and leading rights theories. Second this paper will describe the right to bear arms and how

it has been interpreted by the U.S. Supreme Court. Third this paper will describe existing

positive law limits, and potential limits to the right to bear arms. Lastly this paper will offer

concluding thoughts on how the limits discussed could shape the gun rights debate.

RIGHTS ANALYSIS FRAMEWORK

A right is defined as something that is due to a person by just claim, legal guarantee, or

moral principle. That definition includes several types of rights. Rights that are described by a

legal guarantee are usually codified in positive law instruments like a constitution, or statute.

Rights that are based on moral reasoning, or morals based social practices are derived from

natural law. The origin of a right is often used to justify the legitimacy of that right. Rights

typically fit into the following formula. All rights have a subject, the right-holder. They all also

have an object, the right. Rights that create a duty in another person will have a respondent, the

duty-bearer, and a justification for the right.

Rights also have a basic internal structure that tells us how a right will be asserted. One

commonly discussed structure of rights is the hohfeldian incidents. Hofeldian incidents have four



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components: a privilege, claim, power, and immunity. Privileges and claims are considered

primary rules. Powers and immunities are considered secondary rules, and can be used to alter or

lock-in a primary rule. A right may include one or more of these components. When a right is

composed of multiple components it is called a molecular right. Many believe that all rights can

fit into the hohfeldian framework.

A privilege is the right to engage in certain activity. A person has the freedom to engage

in that activity because there is no duty not to engage in that activity. For example when a person

is asked to reveal discussions with their attorney they can assert their attorney-client privilege.

The attorney-client privilege removes the person’s duty to reveal the discussions. Privileges are

either single, or paired. A single privilege exempts a right holder from some general duty. On the

other hand, a paired privilege gives the right holder discretion to determine whether or not to

perform some action.

A claim confers a right to have someone do something (or not do something) and a

correlative duty in another person (or people) to comply. Claims can have three different

functions. Claims can: give the right-holder protection, compel a duty-bearer to perform a

specific action, or entitle the right holder to provisions to meet a need. For example an employee

has a claim right against their employer to wages for hours worked. Claim rights can be positive,

requiring the duty-bearer to act in a certain way. A claim right can also be negative, requiring a

duty-bearer to refrain from acting in a certain way. The right of a child not to be abused is an

example of how a negative claim right is used for a protective function.

A power gives the right-holder the ability to create, waive, or annul a privilege, or claim.

A right-holder may have the power to change her, or another person’s privileges or claims.



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Powers are either single or paired. For example the Governor of Mississippi used discretion in

granting a pardon which changed the prisoner’s normative situation.

Immunity represents an absence of power in a party to alter a privilege or claim.

Immunity confers upon the right-holder protection from an unsanctioned use of power. For

example the First Amendment says Congress shall make no law abridging the people’s privilege

of free speech. That means “the people” are immune from congressional attempts to alter that

privilege.

There are theories that clarify what a right is and what they do for their holders. The two

main theories of rights are the will theory and the interest theory. Will theorists believe that a

right gives its holder control over another person’s duty to act toward the right-holder. A right-

holder may choose to require the duty-bearer to do something, or refrain from doing something

to fulfill her obligation. Under the will theory a right must include power. This definition of right

led to the exclusion of many inalienable rights such as the right not to be enslaved. It also

excludes the rights of people who are unable to exercise control. Under will theory a child would

not be able to assert the right not to be abused because children cannot independently assert

control over adults.

Interest theorists assert that rights function to further the right-holder’s interests. When a

claim right is involved the duty bearer’s obligation helps further the right-holder’s interest. Any

power or immunity must also further the right-holder’s interest. Unlike the will theory, interest

theorists embrace inalienable rights. For example the right to not be enslaved furthers the right-

holder’s interest in freedom. Interest theory does have its shortcomings. Interest theory does not

recognize rights that benefit someone other than the right-holder. Imagine that Grandma pays



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Smith $35,000 for a BMW for her granddaughter. Although the payment confers a right to claim

the car, interest theorists would not say Grandma has a right because the benefit of the car goes

to her granddaughter.

THE RIGHT TO BEAR ARMS

The Second Amendment of the U.S. Constitution provides:

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 amendment includes two clauses. The prefactory clause, “A well regulated Militia being

necessary to the security of a free State,” is a preamble which states the purpose of the

amendment. The operative clause, “the right of the people to keep and bear Arms, shall not be

infringed,” tells how the amendment operates. On its face the amendment seems to give

members of a state’s militia the right to bear arms to defend the state. This interpretation is the

collective right interpretation. In U.S. v. Miller the Supreme Court held that Congress could

regulate interstate firearm transmissions. In Miller the defendant was accused of transporting an

unregistered sawed-off shotgun through interstate commerce in violation of the National

Firearms Act. The Court reasoned unless the defendant could show that the sawed-off shotgun

had, “some reasonable relationship to the preservation or efficiency of a well regulated militia”

that the Second Amendment did not guarantee a right to bear that type of arm. Some have taken

the Court’s invocation of the prefactory clause to mean that the amendment only guarantees the

right to bear arms while in service to a militia. In the 1980s a different theory about the meaning

of the Second Amendment emerged. Scholar’s argued the amendment guaranteed an individual



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the right to bear arms. This, the individual right interpretation, is premised on the words, “the

right of the people to keep and bear arms.” In 2008 the Supreme Court weighed in on the

individual right interpretation in District of Columbia v. Heller. In Heller the Court held the

Second Amendment conferred an individual right to keep and bear arms which is unconnected to

service in a state militia. In Heller the Court struck down a Washington D.C. law that banned

handgun possession in the District. The defendant, intended to use the handgun for self-defense

inside of his home. The majority of the Court concluded that the prefactory clause did not limit

or expand the scope of the operative clause. The Heller Court pointed out a limitation to this

right. The court limited the individual’s right to bear arms to use for traditional lawful purposes.

The applicability of the right to bear arms is also shifting. In 2010 the Supreme Court unsettled a

commonly held belief that the Second Amendment only applied to the federal government. In

McDonald v. City of Chicago the Court held that the Fourteenth Amendment Due Process

Clause made the Second Amendment applicable to the States. In McDonald the Court struck

down a Chicago handgun ban similar to that in Heller.

The Molecular Structure of the Right to Bear Arms

The right to bear arms fits into the hohfeldian incidents framework. The Second

Amendment is a molecular right conferring both primary and secondary level rights. On the

primary level the Second Amendment confers a privilege to “the people” to engage in the act of

keeping and bearing arms. The Second Amendment also gives its right-holders a claim right.

“The people” have a negative claim that their right to bear arms not be infringed. Although the

amendment does not expressly name the duty bearer, McDonald suggests that both federal and

state governments owe the duty created by the Second Amendment. On the secondary level the

people also have immunity. All levels of government have power to enact laws. Without a



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restriction, the government could use its power to deny a person’s Second Amendment right. The

immunity bars government from passing laws that would infringe upon the right to bear arms.

Theoretical Acknowledgement of Right to Bear Arms

Interest theory would recognize the right conferred in the Second Amendment. The right

to keep and bear arms furthers the interest of the right holder in one of two ways. If you ascribe

to the collective right interpretation, the Second Amendment furthers the right-holders interest in

protecting their state. If you believe the Constitution confers an individual right, then the right-

holder’s interest in protecting his state, or any personal liberties is furthered by the right

conferred in the Second Amendment.

A will theorist might not recognize the right to bear arms because it does not expressly

give the right-holder power over the duty-bearer. Though the government has a duty not to

infringe the right to bear arms, the government retains whatever power exists to create, or revise

a law that would affect the right to bear arms. The amendment does not expressly allow the right-

holder to waive the right to bear-arms. Nor does it expressly allow the right-holder to transfer

their right to bear-arms to someone else. One could argue that the right to bear arms can be

waived. By submitting to legal restrictions, such as an assault weapons ban, a right-holder is

waiving some of her right. In that sense the right-holder is altering the duty- bearer’s obligation.

LIMITS ON THE RIGHT TO BEAR ARMS

Although the right to bear arms confers immunity that does not mean the right is

unlimited. Various background theories allow rights to be limited in certain circumstances. A

utilitarian might limit a right if doing so would be more beneficially to the majority. A natural



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law theorist might limit a widely held right if the exercise of that right would infringe upon a

fundamental right of an individual.

Experience & the Resulting Positive Law Limits

Opponents of the proposed assault weapons ban have argued such a ban would be an

infringement on the right to bear arms. While it is true that a ban would limit the right to bear

arms, it’s an exaggeration to say that such a limitation is an unconstitutional infringement. The

text of the amendment provides no guarantees as to which arms people may bear. In the centuries

since the adoption of the Second Amendment, every level of government has passed laws that

limit the right to bear arms. Experience is a common source of inspiration for the positive law

limitations. When gun violence claims the life of a public figure, runs rampant in a particular

community, or touches a defenseless segment of society lawmakers have made it harder to obtain

firearms. This reactionary approach to rights has received support from legal scholars like Alan

Dershowitz. According to Dershowitz, “Reasonable people will always disagree on the perfect

good, but there will be less disagreement about the evils that experience has taught us to

prevent.”

At the federal level, Congress has enacted several laws that limit the right to bear arms. In

1990 Congress enacted the Gun Free School Zone Act with the likely aim of protecting children

from gun violence. 18 U.S.C.A. § 922(g)(2)(A) made it unlawful to possess a firearm in a school

zone. In U.S. v. Lopez the Supreme Court held that the act unconstitutionally overstepped

Congress’ commerce clause powers. Neither the defendant nor the Court brought up Second

Amendment infringement. Congress subsequently amended the law so that it only applied to

guns transmitted through interstate commerce. 18 U.S.C§ 922(g)(4) made it unlawful for

anyone who had been adjudicated as a mental defective or who has been committed to a mental



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institution to possess a firearm. 18 U.S.C § 922(g)(3) made it unlawful for a person who uses

illegal controlled substances to possess a firearm. The likely aim of both of these laws is to keep

guns away from people who lack the competence to operate a firearm safely. 18 U.S.C. § 922

(o)(1) made it unlawful for a person to possess a machinegun. In 2012 the Ninth Circuit held that

the machinegun ban did not infringe the defendant’s Second Amendment rights. The court cited

the Supreme Court’s decision in Heller in which the Court stated, the protections of the Second

Amendment do not extend to “weapons not typically possessed by law-abiding citizens for

lawful purposes.” The Court noted that machineguns could kill dozens of people within

minutes, and the fact that machineguns were rare in the marketplace due to the ban. This

machinegun case is instructive of how courts might hold on the constitutionality of an assault

weapons ban because of the similar lethality of the firearms.

The Egoism of an Irrelevant Individual Right

Legal philosopher, Ronald Dworkin described rights as trumps. A right trumps the will of

the community when the o bjective protected by the right is more important than the community’s

objective. In his thesis Rights as Trumps, Dworkin explained why individual rights are necessary

in a democracy like ours. “We need rights, as a distinct element in political theory, only when

some decision that injures some people nevertheless finds prima-facie support in the claim that it

will make the community as a whole better off on some plausible account of where the

community’s general welfare lies.”

Typically individual rights help establish equality amongst a diverse community.

Individual rights typically protect fundamental rights. The salience of fundamental rights

explains why they are worth subordinating the will of the majority. The freedom to express ones

opinions is widely seen as a fundamental individual right. Free expression is intrinsic to our



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fulfillment as communicative beings and as a consequence advances the dissemination of truth in

the community. The Court, in Heller, held that the right to bear arms is an individual right.

In April 2013 the U.S. Senate voted on the bipartisan Manchin-Toomey Amendment, a

proposal that would strengthen existing background checks for firearm purchases. Polls showed

90% of Americans supported the proposal as a pragmatic response to the mass murders of 2012.

The polls show the public’s willingness to limit their legal right to bear arms, perhaps based on a

moral sense of duty. Despite broad public support the Senate failed to pass the measure. Many

believe the Senators, fearing midterm election challenges, caved to the will of an outnumbered

well-funded gun lobby.

This turn of events pits rights of the collective against individual rights. In Rights as

Trumps, Dworkin cautioned us not to pay insufficient attention to an outweighed minority, but

also urged that we not go beyond what is required by equality and justice to protect the rights of

a few. I believe that the Senators’ disregard of the will of their constituents does the latter.

Unlike the rights of homosexuals in Rights as Trumps, the primary justification for gun control

does not rely on moralistic prejudices. The right to bear arms would be limited in order to

prevent a wrong that the community collectively abhors.

Scholars have referred to this type of rights conflict as the egoism of individual rights.

When people think of individual rights they think of autonomy. I agree in most cases that human

beings should not be denied the right to have their rational capacity reflect their behavior.

Usually when someone infringes a right to think and act accordingly they destroy the right-

holder’s dignity. Proposed limitations on the right to bear arms, such as the assault weapons ban,



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removes one choice among many but does not stop the right-holder form selecting another

firearm. The right-holder would maintain their dignity in that sense.

The right to bear arms is also different from the individual rights examples presented, in

the sense that it creates irrevocable negative externalities that the community must internalize.

When a person possesses a firearm they do so with the knowledge that the firearm exacts lethal

force. When an individual decides to use a firearm to kill another person they are externalizing

the effects of their decision to exercise their right. The community’s medical, police, and judicial

resources are called upon in the aftermath of the right-holder’s decision. The broader community

internalizes these costs. The same is true when a law-abiding citizen’s gun is stolen and then

used to commit crimes against the law abiding citizen or others.

Opponents of gun control argue that the right to bear arms is fundamental to protection

against tyranny of the majority. While the historical origins of this argument are accurate, the

current state of affairs in America suggests this argument is losing relevance. It is true that the

United States secured its freedom by the power of the gun. It is also true that colonial Americans

had very few express rights, and that their basic liberties were often trampled. Over two centuries

later the United States has a highly developed catalogue of enumerated liberties in the Bill of

Rights. It even has a constitutional amendment that recognizes unenumerated rights. Citizens of

the United States enjoy the benefit of laws protecting their civil rights. The right to free speech,

the right to equal treatment, the right to assembly, the right to vote, and the right to a fair wage

all work together to prevent the type of tyranny colonial Americans experienced. The idea that

anyone in 21st century America would use a gun to assassinate political leaders by whom they

feel oppressed is unthinkable. Our framer’s most cited reason for the right to bear arms has long

since disappeared. Maybe the time has come for the Second Amendment, in its current form, to



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disappear. The Second Amendment is a right created by positive law. Positive law can be given,

and it can be taken away.

A Co un te rv ai li ng Ri ght of Li fe

In natural law moral principles serve as a guide to humanity. A central principle to those

teachings is the importance of a life. Natural law asserts that all human beings have a right not to

be killed. This right creates a duty in anyone that would visit death upon the right-holder. Alan

Gewirth, a moral philosopher, described the right to life as an absolute right. Gewirth described

this absolute right through a conflict of rights example in which terrorists tell a man if he does

not torture and kill his mother that they will detonate a nuclear explosion in a city. Gewirth

ultimately concludes that both the mother, and the city people have an absolute right to life. He

also concluded that because the terrorists’ actions intervened, the man would not be morally

culpable if he refused to kill his mother. Gewirth’s exercise fleshed out an important point about

conflicting rights. Where competing rights are of equal importance, for example the lives of the

mother and the lives of the city people, you cannot justify diminishing one right in favor of

another. Gewirth went on to add that if the man faced a situation where he could have prevented

the deaths of the city people at a lower cost he was morally obligated to act. The framing of the

current debate on gun control has pit the right to bear arms against the right to life by asking

Congress to respond to the wave of gun related homicides by limiting the right to bear arms. If

life is an absolute right, it would be reasonable to conclude that the right to bear arms must be

subordinated in this conflict. Gewirth’s absolute rights proposition has been criticized by

utilitarians, and consequentialists among others.

Even if you do not agree that the right to life is absolute, you might recognize its

historical significance in the United States. The right to life has long been seen as an important



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inalienable right. Many of the framers of the U.S. Constitution were influenced by natural law

teachings. Thomas Jefferson took from the teachings of John Locke when he authored the

Declaration of Independence. In the Declaration of Independence the thirteen States declared:

We hold these truths to be self-evident, that all men are created equal, that they are

endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and

the pursuit of Happiness…

The right to life is also expressly mentioned in the Fifth and Fourteenth Amendments. The fact

that the right to life is just as deeply rooted in American history as the right to bear arms alludes

to its potential legitimacy as a countervailing factor which should be weighed against the right to

bear arms in the gun control debate.

CONCLUSION

The limitations mentioned in this paper suggest that the right to bear arms is not absolute.

Where a certain type of gun seems to be inflicting an inordinate amount of harm on innocent

Americans we are justified in limiting the right of our fellow Americans to bear that arm. If

Congress finds the courage to utilize its power to legislate, it is likely that they will find favor

with courts. The Court has previously expressed its support of targeted laws that restrict our

ability to possess guns that are not typically used for lawful purposes. While gun advocates could

argue that you can use an assault weapon for hunting, they must acknowledge that assault

weapons are typically used in theaters of war, and increasingly used in civilian settings. (Word

Count: 4,862)



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40. 18 U.S.C. § 922(g).

A Rights Theory Analysis of the Second Amendment By. Najwa Sharpe

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