Where the gun law debate took a wrong turn

November 29, 2017

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.
~Second Amendment to the US Constitution

The first ten amendments to our Constitution were intended to protect individual liberties against the vast power of the federal government. The Second Amendment is the most confusing. Why did the Founders include the clause about militias? Were they saying it only protects the gun rights of militias (or, in modern language, the National Guard, law enforcement, etc.)? Or does the “right of the people,” in fact, include us all?

The Founders had to be concise in writing the Constitution so it would not become a multi-volume document. Every word, every phrase, means something; no clause is superfluous. Also, no constitutional right is limitless; they can all be regulated in some fashion. So why is the debate about gun rights so polarized?

On October 2, the New York Times pointed out that, since the shooting at the Pulse Nightclub in Orlando in June 2016, there have been “477 Days. 521 Mass Shootings. Zero Action From Congress.”

It wasn’t always this way. In 1981, Ronald Reagan and Pope John Paul II were both shot by would-be assassins. The public did not react with numbness or resignation, but with legislation to make handgun sales and possession illegal— legislation that, believe it or not, was upheld.

In the Chicago suburb of Morton Grove, a business applied for a permit to sell guns.  After intense debate, the city trustees passed an ordinance prohibiting the possession of handguns in the home. Thus Morton Grove became the first American city to enact such a ban, which was upheld by the Seventh Circuit in Quilici v. Morton Grove (1982). Other cities, including Washington DC eventually passed similar legislation.

Fast-forward to 2007. Attorney Robert Levy was a Senior Fellow at the libertarian Cato Institute.  Levy was by his own admission “not particularly interested in guns.” He had never even held a gun, but was nonetheless extremely interested in protecting individual rights.

He and his Cato colleagues focused on what they viewed as unconstitutional gun laws in Washington DC, which not only banned handgun possession, but required other firearms in the home to be unloaded and disassembled or otherwise inoperable (e.g. with a trigger lock).

Levy and friends patterned their advocacy on the inclusive rhetoric of the NAACP. “Inspired by the work of Thurgood Marshall,” Levy told the New York Times, “we didn’t want to be going to the court with a radical case. All we are asking is to let law-abiding residents of the District of Columbia possess functional firearms to defend themselves where they live and sleep.”

They selected respectable plaintiffs who genuinely needed a handgun for self-defense, including a software designer threatened repeatedly by drug dealers, a gay man who successfully fought off 20 homophobes with his gun; an employee of the Department of Agriculture who lived in a high crime neighborhood—and one who would go down in history as changing the course of Second Amendment jurisprudence: Dick Heller, a police officer who wanted to keep a handgun in his home.

Prior to 2008, case law generally viewed the Second Amendment as applicable to militias, not to individuals. In United States v. Miller (1939), the Supreme Court addressed a federal law banning transportation of a short-barreled gun. The Court analyzed the constitutionality of that law solely on the basis of whether this type of weapon was used by militias.

The Court held that “[i]n the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches...has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

The Court held that the Framers’ intent in adopting the Second Amendment was “obvious[ly]...to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”  

Some legal analysts believe the Founders actively supported gun regulation. Adam Winkler of The Atlantic observed in 2011 that “[t]he Founding Fathers instituted gun laws so intrusive that, were they running for office today, the NRA would not endorse them,” including a colonial law requiring gun registration by militias.    

District of Columbia v. Heller (2008) changed everything. In the 5-4 ruling, Justice Antonin Scalia, writing for the majority, held that the Second Amendment does confer an individual right to bear arms. He opined that “the right of the people” has always been understood to apply to individuals. However, Scalia cautioned that “[l]ike most rights, the right secured by the Second Amendment is not unlimited...[It is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” especially “dangerous and unusual weapons.” It protects weapons “in common use” at the time the amendment was enacted. This holding was applied to the states in McDonald v. City of Chicago (2010).

Originally, the Bill of Rights only applied to what the federal government could or could not do. Theoretically, a state could have established a state religion or banned free speech, unless its state constitution said otherwise.

Over the last century, however, the Supreme Court has been applying the Bill of Rights to the states by “incorporating” those rights into the Fourteenth Amendment’s guarantees of liberty and due process. But this occurred in a piecemeal fashion. McDonald v. City of Chicago finally applied the Second Amendment to the states, with Justice Samuel Alito opining that “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense.”

If the Founders had wanted to protect individual gun rights, wouldn’t they have simply deleted the phrase “a well regulated Militia” and simply written that “the right of the people to keep and bear Arms shall not be infringed”? The Heller court engaged in egregious judicial activism, taking their White-Out to a phrase the justices found to be inconvenient to their political agenda.

Whatever test will evolve to balance Second Amendment regulation is yet to be determined, but it is safe to say that you probably won’t be allowed to keep a missile launcher in your backyard any time soon.

The information and opinions in this column do not constitute legal advice.

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