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UNDERSTANDING THE SECOND AMENDMENT - III

By William Standring
06/27/08
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Third in a Series of Five
Read Second in the Series The Heart of the Case

To grasp aright the Supreme Court’s ruling in District of Columbia v. Heller, the gun control case, you have to know a few of things about the Second Amendment.

• The Second Amendment applies solely to actions by the federal government. It forbids infringement of the right to keep and bear only by the Congress, the president, and the federal judiciary.
• State governments, within their jurisdictions and the limits of their constitutions, may do as they please about gun control, Washington be damned.
• But, the District of Columbia is Washington, a creature of the federal government, directly subject to Congress, and the only place—only city anyway—in the United States in which the Second Amendment applies, though state constitutions may have analogous provisions.
• The Second Amendment creates no right; it guarantees a right that existed before the Constitution and the Bill of Rights.
• At that, until now, the federal judiciary has, except for two court of appeals decisions, construed the amendment only to mean that the federal government may not infringe the right to keep and bear insofar as a militia interest is involved.
• The amendment left the question of an individual right to arm himself for self defense untouched by the federal government, and entirely up to the states. In dissent, Justice Steven G. Breyer wrote: “To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.”
• The founders purposed to protect the state militias from disarmament from the danger of a despotic federal government that might find advantage in a dangerous-to-liberty standing army even in times of peace. That’s what that introductory clause was all about. That’s what the whole amendment was about.

In Heller, the majority read the militia clause out of the sentence—saying that it was prefatory, not operative, and served no particular purpose—and read into it instead a never-before-noticed in those twenty-seven words, three commas, and a period a self-defense right to lock and load. Or, as Justice Antonin Scalia put it, an “an individual right to possess and carry weapons in case of confrontation.”

Fifty-four pages of the majority opinion are devoted to a tortuous, historically doubtful, and occasionally implausible, explanation of such things as how it is that hunters and tin-can plinkers “keep and bear arms” just like militiamen. It said, more or less, that James Madison didn’t know his own mind when he wrote the amendment while thinking of the military, and that handguns, no matter how many needless deaths they cause in crime-ridden D. C., can’t be banned because, among other things, they are the gun-buyers’ weapons of choice. By that logic, Breyer pointed out, machineguns would become legal if everyone went out and bought one. Don’t take my word for it; read the decision for yourself at www.supremecourtys.gov/opinions/07slipopinion.html.

Next: What the Court Said

Read Standring’s related blogs The Second Amendment Goes to Heller and A Well Regulated Militia: Did the Supreme Court Shoot Itself In the foot?