2nd Amendment: No Right to Bear Arms


Although the Supreme Court’s conservative five-member activist majority of Scalia, Thomas, Alito, Roberts, and Kennedy ignored the “original intent” of the Second Amendment, as they drafted law from the bench in 2008, and gave individuals who had not enlisted in any state militia an individual right to bear arms, the Constitutional interpretation enunciated by dissenting justices Stevens, Souter, Breyer and Ginsburg, who said only state militia members have a right to bear arms, was the correct view.

In the American Revolution, a loosely-affiliated group of colonial states, operating under the Articles of Confederation (1777-87), provided arms to those serving in well-regulated militias. Art VI of the Articles stated in part: “…Every state shall always keep up a well-regulated and disciplined militia, sufficiently armed…and shall provide…a proper quantity of arms…”

When the Founders realized the Articles were too weak, and the nation needed a stronger central government, they adopted the U.S. Constitution, which created a federal system, and delegated to Congress the power to raise an Army. The new arrangement concerned some, as they feared a rouge President might use the Army for his own personal purposes, to overthrow their liberties.

The Second Amendment was adopted to preserve the rights of the states to maintain armed militias, so they could collectively resist a federal Army. This is why it 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 “original intent” of the 2nd Amendment was to prevent the federal government from disarming state militias. In modern terms, the U.S. government in Washington cannot take guns away from those in state militias, such as the Wisconsin National Guard. If you belong to the Guard, you have a right to bear arms; if not, you have no right to them.

Subsequent Acts of Congress, such as the Militia Act of 1792, which ordered every 18 to 45 year old man to be “enrolled in the militia” and to “provide himself with a good musket or firelock…or with a good rifle” showed the Founders were connecting the right to bear arms with enlistment in a militia.

State Supreme Courts also found only those in the state militias had right to bear arms. In Andrews v State, 50 Tenn. 165 (1871), a Tennessee Court held the right to bear arms for common defense did not mean individual defense, but referred to the right to bear arms for the defense of the community.  In English v State, 35 Tex. 473 (1872), the Texas Court held the “arms” referred to in the Second Amendment are those of soldiers. In Dabbs v State, 39 Ark. 353 (1882), the Arkansas Court held a statute making it an offense to sell “any pistol,” except those “used in the Army or Navy of the U.S.” did not invade the constitutional right to keep and bear arms. In Pierce v State, 276 P. 393 (Ok App 1929), an Oklahoma Court held “arms” in the 2nd Amendment did not include pistols, but only weapons carried by the militia.

A few years ago, however, the conservative U.S. Supreme Court ignored the language of the 2nd Amendment, as well as case precedent, as they created an individual right to bear arms. See District of Columbia v Heller (2008). Heller was later applied to state and local governments, in another 5-4 case. See McDonald v Chicago (2010). (Sotomayer replaced Souter’s dissent).

The only saving grace in Heller was the part where the Court upheld the constitutionality of firearm regulations, and reaffirmed the right of states to engage in gun licensing. They said Second Amendment rights are not unlimited, as there is no right to carry any weapon, in any manner, for any purpose.

Gun regulations have been used for over 100 years. 126 years ago already, the U.S. Supreme Court upheld an Illinois Military Code that prohibited all bodies of men, except U.S. troops, and those in regular organized state militias, from drilling or parading with arms, unless they were licensed. See Presser v Illinois (1886). 115 years ago, in Robertson v Baldwin (1897), the Court held the right to bear arms was not absolute, and states had the authority to regulate concealed-carry. 73 years ago, the Court held the 2nd Amendment does not protect citizens who transport 12-gauge shotguns, because they are not reasonably-related to the preservation of a well-regulated militia. See U.S. v Miller (1939).

Today, while the need of urban governments to reduce crime by imposing complete handgun bans has been blocked, they can still keep felons and juveniles from possessing firearms; they can ban certain types of firearms, like machine guns and sawed-off shotguns; they can prohibit concealed carry; and they can ban guns on public property.

While gun control advocates are unable to ban and can only regulate, 10 to 20 thousand Americans die each year as a result of handguns. Most murders (63%) are caused by handguns, and 70% of the time the person shooting is a friend or relative of the victim. Foreign countries, such as Japan, Canada, and those in Europe, have only a small fraction of homicides caused by handguns.

Gun control is needed in central cities (where there is no hunting), and any regulation that makes access to handguns in urban areas more difficult, is a step in the right direction. Since the Supreme Court decided to write law, and outlawed the option of banning handguns, the only alternative now is to regulate gun use to death, with the hope that someday, a different Supreme Court, will finally apply the original intent of the Second Amendment.

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