The Second Amendment Right to Bear Arms

Dear readers, I have tried to avoid the current argument about the reach of the US Constitution's Second Amendment. The text of the Second Amendment is simple : "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." But, I have decided to wade in and share my views with you. Alexander Hamilton, head of the Federalists who favored a strong federal govennment and weak states rights, explained in 1788: "If circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable[i.e., dangerous] to the liberties of the people while there is a large body of citizens, little, if at all inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow citizens." Those today who seek to suppress the meaning of the clear language of the Second Amendment argue that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus anarchy. Those who argue for taking the Second Amendment as the universal right of citizens to bear arms prefer the statements of Thomas Jefferson, head of the Anti-Federalists and the strongest supporter of a weak federal government controlled by the states, who wrote often in support of citizens' rights to bear arms : "The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." and "The beauty of the Second Amendment is that it will not be needed until they try to take it." BUT, the Constitution, The Juciciary Act of 1789, and case law has given to the US Supreme Court the responsibility of determining what the Constitution's words mean. AND in 2008 and 2010, the Supreme Court issued two landmark decisions officially establishing what the Second Amendment means. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Court ruled that the Second Amendment protects an individual's right to possess a firearm, unconnected to service in a militia and to use that arm for traditionally lawful purposes, such as self-defense within the home, within many longstanding prohibitions and limitations on firearms possession listed by the Court as being consistent with the Second Amendment. Justice Scalia, writing the Majority Opinion, expressed the limitations to the right to bear arms already in place : "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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....the sorts of weapons protected are those "in common use at the time" [that] finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons." In McDonald v. Chicago, 561 U.S. 3025 (2010), the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government. Prior to the Supreme Court's 2008 decision in District of Columbia v. Heller, the courts had yet to definitively state what right the Second Amendment protected. The opposing theories, perhaps oversimplified, were (1) an "individual rights" approach, whereby the Amendment protected individuals rights to firearm ownership, possession, and transportation; and (2) a "states' rights" approach, under which the Amendment only protected the right to keep and bear arms in connection with organized state militia units. In addition, it was generally believed that the Amendment was only a bar to federal action, not to state or municipal restraints. But, the Supreme Court has now definitively held that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia, and to use that weapon for traditionally awful purposes, such as self-defense within the home. Moreover, this right applies not just to the federal government, but to states and municipalities as well. In Heller, the Court held that (1) the District of Columbia's total ban on handgun possession in the home amounted to a prohibition on an entire class of "arms" that Americans overwhelmingly chose for the lawful purpose of self-defense, and thus violated the Second Amendment; and (2) the District's requirement that any lawful firearm in the home be disassembled or bound by a trigger lock also violated the Second Amendment, because the law made it impossible for citizens to use arms for the core lawful purpose of self- defense. The Court reasoned that the Amendment's prefatory clause, i.e., "[a] well regulated Militia, being necessary to the security of a free State," announced the Amendment's purpose, but did not limit or expand the scope of the operative clause, i.e., "the right of the people to keep and bear Arms, shall not be infringed." Moreover, the prefatory clause's history agreed with the Court's interpretation, because the prefatory clause stemmed from the Anti-Federalists' concern that the federal government would disarm the people in order to disable the citizens' militia, enabling a politicized standing army or a select militia to rule. Further, the Court distinguished United States v. Miller, in which the Court upheld a statute requiring registration under the National Firearms Act of sawed-off shotguns, on the ground that Miller limited the type of weapon to which the Second Amendment right applied to those in common use for lawful purposes. In McDonald v. Chicago, the Court struck down laws enacted by Chicago and the village of Oak Park effectively banning handgun possession by almost all private citizens, holding that the Fourteenth Amendment incorporated the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense. The Court reasoned that this right is fundamental to the nation's scheme of ordered liberty, given that self- defense was a basic right recognized by many legal systems from ancient times to the present, and Heller held that individual self-defense was "the central component" of the Second Amendment right. Moreover, a survey of the contemporaneous history also demonstrated clearly that the Fourteenth Amendment's Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation's system of ordered liberty. So, dear readers, we can draw two conclusions about the current argument. First, no municipal, state or federal right to eliminate the basic right of citizens will be agreed to by the US Supreme Court - and if such a Supreme Court decision were to be handed down, that would call into question the good faith of the government, and citizens would be expected, at least by the Founders, to rebel in order to protect their Second Amendment right to bear arms. A Boston Globe editorial last week reminded its readers that without the right to bear arms, American citizens have no other rights because they could not defend them. But, on the other side, bazookas, rocket launchers, if indeed they are included in the Second Amendment as "arms" at all, and assault weapons and multi-bullet clips may also be outside the scope of the Second Amendment, at least as seen by the Court majority in Heller, which protects those arms "...in common use for lawful purposes." We don't yet know the Court's answer to that question. My guess is that they would be restrained as outside the scope of the Second Amendment. Thus, as in every fundamental issue found under the US Constitution, the preferred solution should be debate and legislation that takes into account every position on the issue. But, since the right to bear arms is the basic protection offered by the Constitution to citizens who face a very powerful federal government, the debate should favor rights as against restrictions concerning the Second Amendment. Liberties negotiated away are very difficult to recover.