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Does the Second Amendment in the United States grant the right to not bear arms? For example, if laws were enacted forcing ordinary people to bear arms, could they try to strike down the legislation as unconstitutional?
Although this sounds very hypothetical, Kennesaw, Georgia, in the United States has a law mandating the ownership of firearms, with some exemptions, including on disability and religious grounds.
The 2nd Amendment does not grant a right not to bear arms.
This is its text:
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.
Read D.C. v Heller for the reasons the 2nd Amendment stands for an individual's right to bear arms. Most relevant to this question is what the phrase "keep and bear arms" means (internal citations removed):
We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”
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“Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.
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At the time of the founding, as now, to “bear” meant to “carry.” When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’”
If there is a constitutional argument against mandatory gun ownership laws, it does not stem from the 2nd Amendment.
The US has, at several times in history, had federal laws forcing ordinary people to bear arms: the military draft. The draft was upheld as legal despite many challenges, even in the absence of a declared war (e.g. during the Vietnam war; Wikipedia cites United States v. Holmes, 387 F.2d 781 (7th Cir.), cert. denied, 391 U.S. 936 (1968).)
The draft, as most recently implemented, only applied to certain people (e.g. men in a certain age range), not to everybody. And there were exceptions for religious and conscientious objectors. But claiming these exceptions usually required a showing of evidence of deeply held beliefs; one couldn't legally avoid military service just by saying they didn't want to go. It was definitely intended to be involuntary, so I think your term "forcing" is quite apt.
If there were a general constitutional right not to bear arms, involuntary conscription would certainly violate it. Since conscription has been held to be constitutional, I would conclude that no such right exists.
If there is a right not to bear arms, it must be very limited - certainly much more limited than the Second Amendment right to bear arms, which is enjoyed by nearly every citizen, and can be exercised simply as a matter of choice.
Mr. Benson moved to have the words "but no person religiously scrupulous shall be compelled to bear arms," struck out. He would always leave it to the benevolence of the Legislature, for, modify it as you please, it will be impossible to express it in such a manner as to clear it from ambiguity. No man can claim this indulgence of right. It may be a religious persuasion, but it is no natural right, and therefore ought to be left to the discretion of the Government. If this stands part of the constitution, it will be a question before the Judiciary on every regulation you make with respect to the organization of the militia, whether it comports with this declaration or not. It is extremely injudicious to intermix matters of doubt with fundamentals.
I have no reason to believe but the Legislature will always possess humanity enough to indulge this class of citizens in a matter they are so desirous of; but they ought to be left to their discretion.
The motion for striking out the whole clause being seconded, was put, and decided in the negative--22 members voting for it, and 24 against it.
Source: Purported minutes of a committee in the U.S. House of Representatives Aug 17-20, 1789
Yes, mostly, but more importantly, no.
The original draft of the 2nd amendment included the right of conscience or being scrupulous to bearing arms. They mean the same: not wanting to engage in war.
It seems Jefferson was big on the idea.
Other legislators thought people would abuse it but considered that one could pay a fee or send another person take his place, but then decided that would violate the true beliefs of someone that objected to killing. They dropped the idea and what remained is pretty much the complete 2nd amendment we see today.
A right simply means not a wrong thing to do; what is correct. For the men in that room, a right of the people is to keep and bear arms, to the security of a free state. This amendment, however, was not addressing each individual.
The second amendment is truly addressing the US government and only enumerates a collective right. One who excercises pacifism in earnest would have been respected by these men.
Plus, they made all your unenumerated rights equally protected or not disparaged. They mean the same. A right to freedom of conscience is as much a right as drinking water or giving birth. That is why it could be removed without truly losing it. A right has nothing to do with it being written down, those are just reminders.
Grammatically, the rights were there to encapsulate ideas, to enshrine ideals for the government to live by.
In the moral sense, these rights are an individual's divine knowledge received at the time of our creation.
To further elucidate on this point. The Militia Acts were instituted by Congress. All men were to enlist in the militia and arm themselves. A relatively small fine could be paid in lieu of this duty.
Militia was a government power, to make laws with as the government pleased, but to bear arms reamaind a freedom. Sp, in a round about way, it left the right not to bear arms untouched. However, amendments do not grant rights.
"Although this sounds very hypothetical, Kennesaw, Georgia, in the United States has a law mandating the ownership of firearms"
It does not.
It mandates the head of household maintain a firearm. You do not need to maintain a firearm in Kennessaw to be a citizen. There's a huge distinction there. One would be a law governing home ownership and the other is one restricting the rights of the people. If you don't want to own a home, you don't have to worry about having to own a firearm.
