The subject of gun control has been in the news like never before because of the recent deadly shootings at a theater in Aurora, Colorado, at a Sikh temple in Oak Creek, Wisconsin, and near the Empire State Building in New York City.
Liberals, predictably, are calling for more draconian gun laws.
But this doesn’t mean that conservatives—including those who talk incessantly about their reverence for the Constitution—can be trusted when it comes to the subject of gun control.
Those who talk the loudest about the Constitution don’t think it means what it says and says what it means when it comes to the Second Amendment.
Those who pride themselves on being strict constitutionalists don’t strictly follow the Constitution at all when it comes to the Second Amendment.
Those who talk the most about following the Constitution, obeying the Constitution, and discovering the original intent or original meaning of the Constitution do none of these things when it comes to the Second Amendment.
Those who rail against “judicial activism” and a “living Constitution” are themselves guilty when it comes to the Second Amendment.
All opponents of liberal and progressive cries for more gun control laws appeal to the decision of the U.S. Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), in which the Court ruled that “the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” The Court then reaffirmed this opinion in the case of McDonald v. City of Chicago 561 U.S. 3025 (2010), and further ruled that the Second Amendment also applies to the states.
So why do we still have a myriad of federal gun laws? And why do we still have a myriad of state and local gun laws? Something doesn’t smell right.
The Second Amendment reads: “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.”
Obviously, the Second Amendment hasn’t prevented the federal government from infringing upon gun rights and enacting any gun-control law it chooses to. Basically, the Second Amendment only means what the Supreme Court says it means. To their shame, most “Constitutional conservatives” have agreed, and accepted decades of various federal gun-control laws that make a mockery of the Second Amendment.
In the 2008 supplement to The Constitution of the United States: Analysis and Interpretation that contains an analysis of cases decided by the U.S. Supreme Court to June 26, 2008, it states about the Heller case:
It was not until 2008 that the Supreme Court definitively came down on the side of an “individual rights” theory. Relying on new scholarship regarding the origins of the Amendment, the Court in District of Columbia v. Heller confirmed what had been a growing consensus of legal scholars—that the rights of the Second Amendment adhered to individuals. The Court reached this conclusion after a textual analysis of the Amendment, an examination of the historical use of prefatory phrases in statutes, and a detailed exploration of the 18th century meaning of phrases found in the Amendment. Although accepting that the historical and contemporaneous use of the phrase “keep and bear Arms” often arose in connection with military activities, the Court noted that its use was not limited to those contexts. Further, the Court found that the phrase “well regulated Militia” referred not to formally organized state or federal militias, but to the pool of “able-bodied men” who were available for conscription. Finally, the Court reviewed contemporaneous state constitutions, post-enactment commentary, and subsequent case law to conclude that the purpose of the right to keep and bear arms extended beyond the context of militia service to include self-defense.
Using this “individual rights theory,” the Court struck down a District of Columbia law that banned virtually all handguns, and required that any other type of firearm in a home be dissembled or bound by a trigger lock at all times. The Court rejected the argument that handguns could be banned as long as other guns (such as long-guns) were available, noting that, for a variety of reasons, handguns are the “most popular weapon chosen by Americans for self-defense in the home.” Similarly, the requirement that all firearms be rendered inoperable at all times was found to limit the “core lawful purpose of self-defense.” However, the Court specifically stated (albeit in dicta) that the Second Amendment did not limit prohibitions on the possession of firearms by felons and the mentally ill, penalties for carrying firearms in schools and government buildings, or laws regulating the sales of guns. The Court also noted that there was a historical tradition of prohibiting the carrying of “dangerous and unusual weapons” that would not be affected by its decision. The Court, however, declined to establish the standard by which future gun regulations would be evaluated. And, more importantly, because the District of Columbia is a federal enclave, the Court did not have occasion to address whether it would reconsider its prior decisions that the Second Amendment does not apply to the states.
The opinion in the Supreme Court’s 5-4 Heller decision was written by Antonin Scalia, joined by John Roberts, Anthony Kennedy, Clarence Thomas, and Samuel Alito. There is much good in this opinion:
During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. . . . It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.
In all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. . . . This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”
Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542,
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way.
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
However, this does not mean that conservatives on the Supreme Court think the Second Amendment means what it says and says what it means. As Scalia also writes:
There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
These are dangerous dicta.
But not only did the Supreme Court reaffirm in the McDonald case that the Second Amendment protects an individual right, it also repeated the assertion in Heller that the government would infringe upon American’s gun rights on any occasion and for any reason it wanted to:
It is important to keep in mind that Heller, while striking down a law that prohibits the possession of handguns in the home, recognized that the right to keep and bear arms is not a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here.
Most people misconstrue the nature of the Second Amendment. The Second Amendment confers no positive right. Nothing in the Second Amendment grants any American the right to do anything. If the Amendment didn’t exist, Americans would still have the natural and moral right to keep and bear arms of any kind for any purpose. The Second Amendment only recognizes an existing right. If the federal government had any authority whatsoever to make any law regarding any weapon, then that authority would have to be spelled out in the Constitution in Article I, section 8. The Second Amendment is merely an additional limitation on federal power to infringe upon gun rights besides the fact that no authority is granted to the federal government in its limited, enumerated powers to infringe upon them in the first place. As part of the Bill of Rights, the Second Amendment was designed to protect the rights of Americans from infringement by the new and powerful central government under the Constitution.
Even if the Second Amendment only protected the right to keep and bear arms in an organized militia, it still wouldn’t change anything. In that case, all it would do is specifically protect the right to keep and bear arms in an organized militia. It wouldn’t change the natural and moral right of all men to arm themselves for hunting, sport, recreation, or self-defense against aggression by other men or governments.
But what about the historical exceptions mentioned by Justice Scalia? What about weapons that wouldn’t normally be used in a militia? What about weapons that weren’t envisioned at the time of the writing of the Constitution? What about dangerous and unusual weapons?
Yea, what about them?
Again, the Second Amendment reads: “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 Second Amendment doesn’t read:
- The right of the people to keep and bear arms shall not be infringed, except by historical infringements.
- The right of the people to keep and bear arms shall not be infringed, except by longstanding prohibitions.
- The right of the people to keep and bear arms shall not be infringed, except when it comes to dangerous and unusual weapons.
- The right of the people to keep and bear arms shall not be infringed, except when it comes to weapons not normally used in a militia.
- The right of the people to keep and bear arms shall not be infringed, except when it comes to weapons that cannot be hand-carried.
- The right of the people to keep and bear arms shall not be infringed, except when it comes to military-type weapons.
- The right of the people to keep and bear arms shall not be infringed, except when it comes to automatic weapons.
- The right of the people to keep and bear arms shall not be infringed, except when it comes to weapons that weren’t envisioned at the time of the writing of the Constitution.
- The right of the people to keep and bear arms shall not be infringed, except when it comes to weapons not in common use.
- The right of the people to keep and bear arms shall not be infringed, except by reasonable regulations.
- The right of the people to keep and bear arms shall not be infringed, except by federal laws that infringe upon that right which are approved by the Supreme Court.
The Second Amendment has no exceptions.
This doesn’t mean that it should be lawful to fire a gun anywhere one chooses. This doesn’t mean that it should be lawful to carry a gun onto anyone’s property without permission. This doesn’t mean that it should be lawful to set up a gun range in one’s backyard. This doesn’t mean it should be lawful to keep a gun in one’s car at work if one’s employer prohibits it.
But it does mean that from a constitutional, decentralist, or libertarian perspective, the federal government has no authority to ban or regulate handguns, shotguns, rifles, automatic weapons, sawed-off shotguns, machine guns, assault rifles, grenades, bazookas, high caliber guns and ammunition, or high capacity magazines.
The federal government has no authority to institute gun bans, gun-free zones, licensing of gun dealers, gun-owner databases, gun licensing, gun registration, or concealed weapons laws.
The federal government has no authority to mandate background checks, waiting periods, limits on gun purchases, trigger locks, age restrictions, or any mandate to the States to do these things.
The federal government has no authority to regulate gun sales, gun purchases, gun shows, gun storage procedures, ammunition, magazine capacities, gun calibers, or gun barrel lengths.
The federal government has no authority to pass gun-control legislation like the National Firearms Act, the Gun Control Act, the Brady Handgun Violence Prevention Act, and the Gun Free School Zones Act.
The federal government has no authority to set up a Bureau of Alcohol, Tobacco, and Firearms since it has no authority to ban or regulate alcohol, tobacco, or firearms.
What part of “shall not be infringed” is so hard to understand?