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
Let's see, “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.” Even if the wording implies that the populace must be armed when called up for militia service, it says "the right of the people shall not be infringed." Since the amendment states that bearing arms is a "right" and "not to be infringed" it is an open and shut case for anyone taking an objective reading of it. "Rights" are entitlements. Privileges can be taken away, but not rights. It matters not if this right was given with militia service in mind. Good work, Mr. Emma.
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