A bill filed in the Virginia General Assembly sought to uphold the right to keep and bear arms as described in the Second Amendment and in the famous 2008 U.S. Supreme Court Heller decision. Despite the good intentions of the legislation’s backers and some correct assertions made in the text of the bill, the legislation is based on a faulty understanding of the Second Amendment.
Del. Mark Cole (R- Spotsylvania County) and three other Republican lawmakers filed House Bill 4001 (HB4001) on July 2. The concise bill states that “the right to keep and bear arms conferred by Article I, Section 13 of the Constitution of Virginia and the Second Amendment to the United States Constitution is an individual right that is unconnected with militia service.” It further states that “it is the intent of the General Assembly that this act codify the opinion of the Supreme Court of the United States in District of Columbia v. Heller, 554 U.S. 570 (2008).”
The bill correctly affirms that the right to keep and bear arms is not tied to militia service. Although able-bodied men in all colonies but Pennsylvania were required to join a local militia and provide their own working firearm, nowhere was it stated that militia membership is a prerequisite to possessing arms. The historical context at the time wasn’t whether you could own a firearm, but whether you were not required to have one.
However, HB4001 incorrectly states that this right is “conferred” by both the state and U.S. constitutions, meaning the right originates from these documents. The right to self-defense is a natural right. The Second Amendment and the corresponding article in the Virginia constitution merely prohibit the federal and state government from infringing on a right that was already assumed to exist.
As Thomas Jefferson put it:
“A free people claim their rights, as derived from the laws of nature, and not as the gift of their chief magistrate.”
At the Massachusetts ratifying convention, Theophilus Parsons declared:
“No power was given to Congress to infringe on any one of the natural rights of the people by this Constitution, and, should they attempt it without constitutional authority, the act would be a nullity, and could not be enforced.”
One can applaud the intent of those promoting this legislation. However, it is important to get the fundamental concepts right. Our rights do not come from pieces of paper. If the Second Amendment and the Virginia constitutional provision were both eliminated, that would not change an individual’s right to keep and bear arms any more than abolishing the First Amendment would take away our right to speech and worship. These documents merely acknowledge those rights and prohibit government infringement.
HB4001 was referred to the Committee on Militia, Police and Public Safety, where it has been tabled.
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