Gun Control Part 3: The Second Amendment (A Legal Analysis)

Pro and anti-gun advocates cite the Second Amendment to the U.S. Constitution as the source fueling their arguments. The Second Amendment provides: “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.” 

The phrasing and words employed by the Framers more than two hundred years ago seem awkward and ambiguous to some twenty-first century readers. Questions arise, for example, What is the connection between the first and second phrase of the sentence? Moreover, Is the right to bear arms somehow dependent upon the people’s connection with a militia, or militia-like activities? Certain experts on the news channels conclude this, while others beg to differ. And, What exactly does the words “Militia”, “Arms”, and “infringed” mean?

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court endeavored to construe the meaning of the Second Amendment. The following is a summary of the Court's decision, written by Justice Scalia:

Held:

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. Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation 2 DISTRICT OF COLUMBIA v. HELLER

   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. [for example]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. Pp. 54–56.

     The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scru­tiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbi­trarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64. (Emphasis in bold added by Charles J. Emma)

478 F. 3d 370, affirmed.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

The 5-4 ruling in this case shows a Supreme Court divided on the interpretation of the 2nd Amendment's 27 words. Furthermore, although the connection between colonial militias and the modern day right to own and possess a firearm was clearly rejected by the court, we don’t know what future government restrictions on the right to possess and own will pass constitutional muster. 

New questions are enriching the controversy. Is a total ban on assault rifles and high volume clips a “reasonable” state action consistent with the lawful defense of self, family, and property? Are other types of weapons such as single-shot pistols or hunting guns sufficient to protect self, family, and property? How about the court’s elevation of the sanctity of possession in the home? Could possession of an assault rifle be limited to the inside of one’s house? 

Finally, Scalia's allusion to the Court's ruling in another case raises 'historical tradition' to a level of authority rivaling that of the U.S. Constitution: ‘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.’   

Have we reached the time in our history when assault weapons, designed to kill as many people in the shortest amount of time, constitute a prohibited dangerous and unusual weapon?

In the wake of the Sandy Hook Elementary School massacre, these are the issues and questions that require diligent, yet respectful, argument as ours is a government of laws. St. Thomas wrote, “Law is an ordinance of reason enacted and promulgated by he who is in charge of the community for the common good.” (Emphasis added). So let us reason together to find the common good. 

Charles J. Emma