Ask any gun enthusiast about the basis or origins of our right to keep and bear arms, and many will undoubtedly bring up the landmark case District of Columbia et al. v. Heller, decided by the United States Supreme Court in 2008.

This case is touted as the vindication of the rights of lawful gun owners. Justice Antonin Scalia wrote the majority opinion, and the Court held that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in the militia, and to use a firearm for traditionally lawful purposes, such as self-defense, within the home. Gun rights activists cheered the decision. But should they have?

The case came before the court after the District of Columbia essentially banned the possession of unregistered firearms, and prohibited the registration of handguns. The City also required handguns to be kept in a non-functioning state when stored inside one’s home – meaning, kept unloaded and disassembled or bound with a trigger lock. Heller was a police officer who sought to register a handgun he wished to keep at home. After the District refused to allow the registration, he sued, citing the Second Amendment as the basis to stop the District from enforcing the ban on handgun registration.

The Second Amendment states the following: “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.” Accordingly, the court struck down the city’s laws as a violation of the Second Amendment. Law-making authority in the District of Columbia, being granted to the council by Congress, is held to the same standard as laws passed by Congress. That means violations of “freedoms” outlined in the Bill of Rights are properly deemed unconstitutional.

Justice Scalia, however, did not stop there. He took the opportunity to spread his intellectual wings and wax eloquent on matters irrelevant to the purpose and intent of the Constitution as a whole and the Second Amendment in particular.

Scalia is frequently referred to as a “textualist,” meaning he relied on the plain words of the Constitution when determining what the document meant. His conclusions in Heller reveal the inherent problem with this interpretive method. Scalia failed to properly take into consideration the ratification debates and the understanding of the constitutional agreement at the time; in other words, he ignored the question: to what type of government did the States and the people consent?

James Madison, in Federalist #45, explained that the powers delegated to the general government were “few and defined.” Powers the states delegated to Congress are set forth in Article I, section 8. Other than the authority to arm the militia, there is no mention of regulating firearms anywhere in Article I. Based on this clause, some feared Congress could either refuse to arm the militia, or perhaps disarm it.

The Second Amendment served two distinct purposes- avoiding the need to implement standing armies, and reserving to the States the authority to regulate arms in an effort to leave ultimate control over the government within the hands of the States and their respective people. This restriction placed upon the Federal Government is reiterated in the Tenth Amendment. It means that any regulation concerning firearms by Congress (and in the District of Columbia) is unconstitutional.

The biggest misconception about the Bill of Rights is that it grants rights to the people. Rather, the Amendments were included to instill confidence in the states and the people of the beneficent ends of the new government, a sentiment expressed in the Preamble to the Bill of Rights. The Second Amendment merely restates the lack of authority to regulate firearms, period; it is a restriction imposed upon the general government, not a grant of rights.

Let’s examine Scalia’s analysis in light of the foregoing to determine whether it conforms with the intent of the ratifying states. He explained that the Constitution was written to be understood by voters, yet he took 64 pages to explain the meaning of the Second Amendment, which itself consists of one sentence.

In section II of the Court’s opinion, he writes, “we turn first to the meaning of the Second Amendment.” This is the part where he could have appropriately stated that the purpose of the amendment was to prohibit any and all firearms regulations on emanating from the general government, declared the District’s laws invalid as violative of the Constitution and simply stopped. Instead, his inquiry turned to which firearms are protected, and whether their use and ownership rely on a connection to service in the militia, as well as an examination of the construction of the language of the Amendment, which he refers to as the “prefatory” and “operative” clauses.

The starting point, he said, is the presumption that the Second Amendment right is exercised individually and belongs to all Americans. Herein lies the problem: the starting point for his analysis is in direct contravention to the purpose and intent of the Bill of Rights — to restrict the general government. When one classifies these restrictions on government as “rights of the people,” the door is then open for the general government to exercise control over a policy matter that was never intended.

Interestingly, Scalia did acknowledge that the rights included in the Bill of Rights do pre-exist the Constitution and that the right to keep and bear arms shall not be infringed. Yet, he contradicts himself on page 22 by stating, “…that the Second Amendment conferred an individual right to keep and bear arms. Of course, the right was not unlimited…” (emphasis added.) To claim a right is so sacred that the government may not infringe upon it, but to then say the government has the authority to regulate the very same right is inherently contradictory.

Scalia quoted St. George Tucker in his opinion, as did Carl Jones and I in our article on National Reciprocity. According to Mr. Tucker, “Wherever standing armies are kept up, and when the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”

On page 44 of his opinion, Justice Scalia cites United States v. Cruikshank, 92 U.S. 542 (1875), where the Court held that “the Second Amendment does not by its own force apply to anyone other than the Federal Government.” This quotation can only be interpreted to mean what was intended; again, that the Second Amendment is a restriction, one that does not apply to individuals, but to the general government. Accordingly, firearms are not subject to regulation by the federal government. None whatsoever.

Section III of the opinion starts with the following sentence and offeres a perfect example of why it is imperative to refer to the Second Amendment as a restriction and not a grant of rights: “Like most rights, the right secured by the Second Amendment is not unlimited,” meaning, it is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Had the amendment been held to the standard as an absolute restriction against the general government, there would be no room to whittle away at a pre-existing right. As the jurist mentioned earlier, the right was antecedent to the Constitution and the founders and ratifiers felt it best the general government have a hands-off approach in this area.

Citing United States v. Miller 307 U. S. 174 (1939), Scalia qualifies the types of firearms “protected,” as those which were deemed to be those “in common use at the time.” Also crucial to the Second Amendment “right” is the right to self-defense, as he explained in section IV of the Court’s opinion. The handgun, the primary focus of the law at issue, is “the quintessential self-defense weapon.” He points out how easy a handgun is to store in the home, that it is readily accessible when needed, that it cannot be easily taken away, that it’s easier for those without upper body strength to use, that it can be held in one hand, and that handguns are the most popular choice among Americans for self-defense.

Herein lies another fundamental flaw in Scalia’s interpretation of the Second Amendment. By focusing on the popularity of the handgun, he leaves open the possibility that other firearms may be considered to be outside the purview of the Second Amendment.

After Nicholas Cruz shot and killed 17 students from Marjory Stoneman Douglas High School in Parkland, Florida, the public debate predictably turned to the issue of gun control with a specific focus on the ban of “military style” rifles, or “assault rifles,” as they are often called. Carl Jones and I also wrote an article concerning the proposed ban on the AR-15 and similar “assault weapons.” Missing in the public discussion was a crucial point that was a central reason for the ratification of the Second Amendment: the People must have the means by which they can resist a tyrannical government – means rendered ineffective if we surrender the right to be on a level playing field when it comes to firearms.

Predictably, a federal court judge in Massachusetts recently held that such rifles are not protected by the Second Amendment. And she relied on Heller, and said “assault ruifles” may lawfully be subject to regulation, and even an outright ban. Once again: the Second Amendment doesn’t apply to any model or type of weapon; it applies to the general government, meaning Congress. The Amendment is not a means by which the right to keep and bear arms was granted to the people and the states. It is a restriction against the general government prohibiting it from regulating firearms at all.

During the Virginia ratification debates, Patrick Henry asked, “of what service would militia be to you, when, most probably, you will not have a single musket in the state? for, as arms are to be provided by Congress, they may or may not furnish them.” This proclamation by Henry provides a succinct summation of the general beliefs of a large portion of Americans during the ratification period, a belief which led directly to the adoption of the Second Amendment. It is important to remember that a primary concern was to ensure there be a means by which the people could resist a tyrannical government.

The Second Amendment thus came about as a means of preventing the need for standing armies by keeping “the militia,” or as George Mason asserted, “every able-bodied person,” under the auspices of the individual states – in other words, out of the immediate control of the general government.

To summarize, Justice Antonin Scalia acknowledges that the right to keep and bear arms is a right that predates the Constitution. He cites case law (Cruikshank) affirming that the Second Amendment was to apply to the Federal Government only, and St. George Tucker, who aptly stated that any infringement upon the right to keep and bear arms when standing armies are kept will annihilate liberty. By concluding that the District has a variety of tools to combat gun violence “including some measures regulating handguns,” he first says the right shall not be infringed, but then says, “But we’re going to do it anyway!”

How elected officials should deal with gun violence is beyond the purview of this writing; however, when necessity requires action beyond the scope of the Constitution, then an amendment is required. A Supreme Court ruling is not tantamount to a Constitutional convention, yet that is the practical effect of this decision, and in subsequent cases, the language has been used to further limit gun rights at the state level. What Scalia has implied is that “assault rifles” are not subject to Second Amendment protection, which is, again, a total fallacy given the history and intent of the Constitution as ratified.

Unfortunately, Americans interested in understanding the Constitution fall prey to those seeking to instill in their minds the necessity of an unlimited government. When reasoning set forth in Heller is touted as an “originalist” view of the Constitution, conservatives are duped into believing that to preserve our liberties, we need to simply vote and hope for the next president to nominate, and the Senate to confirm, the right justice to the Supreme Court. As a result, we are in the process of surrendering a fundamental tenet – our ability to defend ourselves from personal assault as well as from a proven threat by the very government imposing these unlawful restrictions. They fail to realize that our natural rights have already gone by the wayside, and we have admitted to being incapable of self-governance. We have surrendered our Revolutionary Legacy.

Suzanne Sherman
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