An International Human Right to Keep and Bear Arms
Schmidt, Christopher J., The William and Mary Bill of Rights Journal
Have all the rights in the Bill of Rights been translated into international human rights? One right that has not become an international human right is found in the Second Amendment of the United States Constitution. It 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."1
It is curious that no international human rights instrument protects the right to keep and bear arms for two reasons. First, self-defense is the only exception to the use of force set forth in the United Nations Charter in article 5 1.2 Second, representative democracy is intrinsic in every international human rights agreement that presupposes the people have the right to rise up and overthrow a non-democratic form of government.
Part I of the Article analyzes the Second Amendment, which secures an individual right to keep and bear arms. This analysis shows the two main purposes of the amendment are to prevent government tyranny and secure the right to individual self-defense. Part II discusses international human rights agreements that support the prevention of government tyranny and that recognize some rights related to the right to individual self-defense. Part III discusses why an international human right to keep and bear arms is necessary. This part shows the international community is implementing more gun control laws, while government tyranny and crime against individuals are still prevalent worldwide, thus, people need arms as a means to protect themselves. Part IV describes what a treaty establishing an international human right to keep and bear arms should provide. This part describes what the purpose of the treaty should be, as well as what specific rights should be secured. Finally, it describes what level of gun regulation would be permissible for states that sign the treaty.
I. THE AMERICAN RIGHT TO KEEP AND BEAR ARMS
The Second Amendment must be analyzed to determine if it secures an individual right to keep and bear arms or just a collective right of a militia to keep and bear arms. I analyze the amendment's text, American cases interpreting it, and its historical understanding.
The Second Amendment 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."3 This text reveals an individual right to keep and bear arms exists.4 "Rights" in the American Bill of Rights belong to individuals.5 The government does not have rights,6 it has "powers" or authorities.7 Nothing in the text suggests the right pertains solely to the militia; instead, it applies to the people.8
The term "the right of the people" appears in the First and Fourth Amendments of the United States Constitution as well.9 Those rights-free speech, free exercise of religion, assembly, petition, and freedom from unreasonable searches and seizures-unquestionably are individual rights. 10 It would be strange to think the same words constitute an individual right in the First and Fourth Amendments and something different in the Second Amendment.11 Further, the rights in at least the first nine amendments are individual rights.12 The Tenth Amendment, placed at the end of the Bill of Rights, reserves remaining powers to the states.13 If the Second Amendment protected a statemilitia power it would have been more properly placed at the end of the Bill of Rights after the listing of individual rights and with the Tenth Amendment's reservation of powers to the states. 14 Since the Second Amendment speaks to "the right of the people" in the beginning of the Bill of Rights' listing of individual rights, a natural reading of it leads to the conclusion that it is an individual right.15
The use of the word "keep" also shows the Second Amendment secures an individual right. The plain meaning of "keep" arms is individual in nature; there is no indication in the text that the right is limited to keeping arms while engaged in military service or as a militia member. …