Assessing the Future of the 2nd Amendment
Michael Ellement
October 24, 2009
Those who believe the 2nd amendment contains an individual right to own a handgun are likely to get a boost this Supreme Court term. In January, the Court will hear arguments in McDonald v. Chicago, which presents a challenge to a Chicago law outlawing handguns in the home.
The 2nd Amendment to the United States Constitution proscribes, "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". While the shorthand definition for the amendment has become "the second amendment contains a right to bear arms", a careful reading of the text suggests something much different.
The amendment contains two separate clauses :
"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 first clause places a specific condition on the second, limiting the latter´s provision significantly.
In 2008, the Supreme Court abandoned precedent and prevailing understanding of the 2nd amendment in the case of D.C. v. Heller. The ruling by the Court declared a District of Columbia law, which prohibited the possession of handguns inside the District, unconstitutional. The opinion noted, "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". The Court disregarded the fact that this theory had been specifically rejected by the Court in the 1939 case of United States v. Miller.
The question now comes to state regulations, as opposed to the Federal one contained in the District. While the initial amendments to the Constitution (commonly referred to as the "Bill of Rights") are only constraints on Federal Government control, the Supreme Court has used the principle of incorporation to apply the Bill of Rights to state action. The Court has held that the 14th amendment due process clause (passed following the civil war) extends many of the protections in the Bill of Rights to the state level.
In terms of incorporating the 2nd amendment to the state level, I would take the position that none of our nation´s history of jurisprudence suggests that such an all encompassing right exists that would prohibit a state from enacting a law restricting handgun possession. Recall, the 2nd amendment very specifically protects a right to possess an arm in connection with militia service. Nothing in the amendment, however, should be read to contain an individual right to own any type of arm one pleases, without regulation by state authoritative agencies.
While "judicial activism" has long been a charge by Conservative politicians against select members of the Supreme Court, the Heller decision very defiantly represents judicial decision making based, not on the facts at hand, but on personal policy preference. No one has articulated this position better than Judge Harvie Wilkinson, in a paper entitled, "Of Guns, Abortions, and the Unraveling Rule of Law". Judge Wilkinson, a long standing advocate for judicial restraint, characterized the Heller decision as nothing more than judicial policy making and blatant hypocrisy. Wilkinson contends that the five justices in the majority have all been consistent advocates of judicial temperance, yet in the case of the 2nd amendment have substituted their own beliefs to give the Constitution a meaning it has never been understood to have.
While I do not wish to enter into the argument over whether gun control is good or bad, or whether individuals should or should not be able to own weapons, my point in terms of constitutional interpretation should be clear; No where in the Constitution of the United States is there a protected individual right, unrelated to military service, to own a gun. The Supreme Court ignored this fact in 2008, and shows all signs of continuing to ignore it in the future. The Chicago statute under review this term will almost certainly be overturned, breaking new ground in the battle over gun rights. It is likely that the Court will continue its path of delineating the legitimate 10th amendment right of states to pass laws it demeans in the interest of health and welfare of the state.
The 2nd Amendment to the United States Constitution proscribes, "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". While the shorthand definition for the amendment has become "the second amendment contains a right to bear arms", a careful reading of the text suggests something much different.
The amendment contains two separate clauses :
"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 first clause places a specific condition on the second, limiting the latter´s provision significantly.
In 2008, the Supreme Court abandoned precedent and prevailing understanding of the 2nd amendment in the case of D.C. v. Heller. The ruling by the Court declared a District of Columbia law, which prohibited the possession of handguns inside the District, unconstitutional. The opinion noted, "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". The Court disregarded the fact that this theory had been specifically rejected by the Court in the 1939 case of United States v. Miller.
The question now comes to state regulations, as opposed to the Federal one contained in the District. While the initial amendments to the Constitution (commonly referred to as the "Bill of Rights") are only constraints on Federal Government control, the Supreme Court has used the principle of incorporation to apply the Bill of Rights to state action. The Court has held that the 14th amendment due process clause (passed following the civil war) extends many of the protections in the Bill of Rights to the state level.
In terms of incorporating the 2nd amendment to the state level, I would take the position that none of our nation´s history of jurisprudence suggests that such an all encompassing right exists that would prohibit a state from enacting a law restricting handgun possession. Recall, the 2nd amendment very specifically protects a right to possess an arm in connection with militia service. Nothing in the amendment, however, should be read to contain an individual right to own any type of arm one pleases, without regulation by state authoritative agencies.
While "judicial activism" has long been a charge by Conservative politicians against select members of the Supreme Court, the Heller decision very defiantly represents judicial decision making based, not on the facts at hand, but on personal policy preference. No one has articulated this position better than Judge Harvie Wilkinson, in a paper entitled, "Of Guns, Abortions, and the Unraveling Rule of Law". Judge Wilkinson, a long standing advocate for judicial restraint, characterized the Heller decision as nothing more than judicial policy making and blatant hypocrisy. Wilkinson contends that the five justices in the majority have all been consistent advocates of judicial temperance, yet in the case of the 2nd amendment have substituted their own beliefs to give the Constitution a meaning it has never been understood to have.
While I do not wish to enter into the argument over whether gun control is good or bad, or whether individuals should or should not be able to own weapons, my point in terms of constitutional interpretation should be clear; No where in the Constitution of the United States is there a protected individual right, unrelated to military service, to own a gun. The Supreme Court ignored this fact in 2008, and shows all signs of continuing to ignore it in the future. The Chicago statute under review this term will almost certainly be overturned, breaking new ground in the battle over gun rights. It is likely that the Court will continue its path of delineating the legitimate 10th amendment right of states to pass laws it demeans in the interest of health and welfare of the state.
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