From the Heritage Foundation's First Principles Series, Nelson Lund (George Mason): The Right to Arms and the American Philosophy of Freedom. From the introduction:
Many Americans, and not just those on the left, misunderstand the liberal principles on which the right to keep and bear arms rests. As we have seen, even well-educated political conservatives can vigorously deny the value of the Second Amendment, and the silence of many other conservative intellectuals suggests a widespread ignorance about its continuing importance. Merely acknowledging that this right is part of America’s tradition will not keep the tradition alive. Scholarship proving that a robust right to arms is enshrined in the original meaning of the Constitution will not stop the courts from interpreting the Second Amendment into oblivion. Showing that restricting the rights of law-abiding citizens has yet to contribute to public safety will not prevent politicians from claiming that new and even more restrictive laws are all we need.
People who do not understand why they should defend the right to arms are not likely to be its most effective defenders. For too long, conservative intellectuals have given insufficient attention to a principled defense of this right. Alexis de Tocqueville, a favorite among conservative thinkers, warned against democracy’s drift toward new and softer forms of despotism. The left wants us to believe that resistance is futile, and conservatives need to overcome the effete sensibility that abhors “America’s frontier infatuation with guns.” The Founders of our republic did not think an armed citizenry was the product of a childish infatuation or a response to life on the frontier, and the philosophers who guided them can help us to see why the right to arms continues to deserve its place in our fundamental law.
And from the core of the argument (footnotes omitted):
The fundamental importance of the right to arms was not an American discovery. Like our own charter of individual liberties, the English Bill of Rights protected the right to keep and bear arms. William Blackstone (1723–1780), the leading authority on English law for Americans of the Founding generation, called it one of the indispensable auxiliary rights “which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.” This right, he said, is rooted in “the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” Blackstone made no distinction between the violence of oppression that results from government’s failure to control common criminals and the oppression that government itself may undertake.
The Constitution proposed by the Philadelphia Convention contained no express protection of the right to arms or of many other fundamental rights. The new government was to be one of limited and enumerated powers, and most of the Framers thought there was no need to expressly protect rights that the federal government would not be empowered to infringe.
With respect to arms, however, there was a special problem. The federal government was given almost plenary authority to create a standing army (consisting of full-time paid troops) and to regulate and commandeer the state-based militias (which comprised most able-bodied men). Anti-Federalists strongly objected to this massive transfer of power from the state governments, which threatened to deprive the people of their principal defense against federal usurpation. Federalists responded that fears of federal oppression were overblown, in part because the American people were already armed and would be almost impossible to subdue through military force.
Implicit in the debate between Federalists and Anti-Federalists were two shared assumptions: All agreed that the proposed Constitution would give the new federal government almost total legal authority over the army and militia, and nobody argued that the federal government should have any authority to disarm the citizenry. Federalists and Anti-Federalists disagreed only about whether the existing armed populace could adequately deter federal oppression.
The Second Amendment conceded nothing to the Anti-Federalist desire to sharply curtail the military power of the federal government, which would have required substantial changes in the original Constitution. Instead, it merely aimed to prevent the new government from disarming American citizens through its power to regulate the militia. Congress might have done so, for example, by ordering that all weapons be stored in federal armories until they were issued for use in performing military or militia duties.
Unlike many people in our time, the Founding generation would not have been puzzled by the text of the Second Amendment. It protects a “right of the people”: i.e., a right of the individuals who are the people. It was not meant to protect a right of state governments to control their militias; that right had already been relinquished to the federal government. A “well regulated Militia” is, among other things, one that is not inappropriately regulated. A federal regulation disarming American citizens would have been considered every bit as inappropriate as one abridging the freedom of speech or prohibiting the free exercise of religion. The Second Amendment forbids the inappropriate regulation of weapons, just as the First Amendment forbids inappropriate restrictions on speech and religion.
I saw Professor Lund give a version of this paper at the Federalist Society National Lawyers Convention in November — very powerful (though obviously subject to debate). Here is video of the panel discussion.
Posted at 6:57 AM