Commentary: Guns and the Constitution

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.

We are familiar with this Amendment. The wording itself has been argued over and over with numerous ruling by the Supreme Court. In “District of Columbia v. Heller (2008)” the Court said, “(1) 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.”

Further down, the ruling said, “1b The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Anti-federalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.”

The Court then said something many people overlook, “(2) 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

In 2012, Nordyke v. King, 2012 WL 1959239 (9th Cir. 2012) – On July 29, 2009, the Ninth Circuit vacated an April 20 panel decision and reheard the case en banc (on [a] bench”) is a legal term used to refer a case heard or to be heard before all judges of a court – in other words, before the entire bench – rather than by a panel selected from them) on September 24, 2009.The April 20 decision had held that the Second Amendment applies to state and local governments, while also upholding an Alameda County, California ordinance that makes it a crime to bring a gun or ammunition on to, or possess either while on, county property. The en banc panel remanded the case to the three-judge panel. On May 2, 2011, that panel ruled that intermediate scrutiny was the correct standard by which to judge the ordinance’s constitutionality and remanded the case to the United States District Court for the Northern District of California. On November 28, 2011, the Ninth Circuit vacated the panel’s May 2 decision and agreed to rehear the case en banc. On April 4, 2012, the en banc panel sent the case to mediation. On June 1, 2012, the en banc panel dismissed the case, but only after Alameda County officials changed their interpretation of the challenged ordinance. Under the new interpretation, gun shows may take place on county property under the ordinance’s exception for “events”, subject to restrictions regarding the display and handling of firearms.

All these rulings (and there are many) deal with the restrictions Federal and Local Governments have in dealing with firearms.

The orthodox view of the meaning of the Second Amendment was articulated by Joseph Story in his influential Commentaries on the Constitution. In his view the meaning of the Amendment was clear:

“The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpation’s of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.^“

In this quote, Story describes a militia as the “natural defense of a free country,” both against foreign foes, domestic revolts and usurpation by rulers. The book regards the militia as a “moral check” against both usurpation and the arbitrary use of power, while expressing distress at the growing indifference of the American people to maintaining such an organized militia, which could lead to the undermining of the protection of the Second Amendment.

Abolitionist Lysander Spooner, commenting on bills of rights, stated that the object of all bills of rights is to assert the rights of individuals against the government and that the Second Amendment right to keep and bear arms was in support of the right to resist government oppression, as the only security against the tyranny of government lies in forcible resistance to injustice, for injustice will certainly be executed, unless forcibly resisted. Spooner’s theory provided the intellectual foundation for John Brown and other radical abolitionists who believed that arming slaves was not only morally justified, but entirely consistent with the Second Amendment. An express connection between this right and the Second Amendment was drawn by Lysander Spooner who commented that a “right of resistance” is protected by both the right to trial by jury and the Second Amendment.

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