Gun Control: Just the Facts, Part 1- The Constitutional Issues
“A well regulated Militia, being necessary for a free State, the right of the people to keep and bear Arms, shall not be infringed.” These 14 simple words in the Bill of Rights have not been a controversy for the better part of our history. It is perhaps only over the last four decades that this constitutional right has become controversial and the subject of legal actions. The mere fact that this was enshrined in the Constitution after the fundamental liberties of free speech, a free press, the right of assembly and redress of complaints against the government, and the freedom to freely worship underscores its importance to those who proposed and enacted the Bill of Rights. As most are aware, many states were hesitant to ratify the Constitution without a Bill of Rights. In order to gain ratification, a gentleman’s agreement was reached that the first Congress would take up the issue. Even then, there was reluctance since enumerating certain rights led some to believe that only those enumerated would be protected while other, unstated rights would be subject to control. That is the basis for the all-encompassing Ninth and Tenth Amendments which, until recently, were almost afterthoughts. In their historical context, however, they were reassurances to the states and the people that there were other rights unenumerated that were protected.
That is not to say that protection of Constitutional rights does not come with some conditions. The examples in other areas are several. Yelling “FIRE!” in a crowded movie theater is not protected free speech. Human sacrifice is not protected by the religious freedom clause. Rioting against the government is not constitutionally protected “redress of grievances,” and no publication can knowingly publish false and slanderous information against anyone. Obviously, the provisions of the first eight Amendments have gone under some transformations in interpretation over time. However, looking over the history of the Second Amendment first and gun control efforts second, one can see a pattern where the proponents of these laws are reactionary. For example, the first national gun control effort- the National Firearms Act of 1934- was clearly in response to gangsters in general and the St. Valentine’s Day massacre in particular. The 1968 Gun Control Act, which banned mail order purchases among other things, was in response to the Kennedy and King assassinations while the Brady Law was in response to the attempted assassination of Ronald Reagan. Likewise, today’s efforts are in reaction to events in Aurora, Colorado or Newtown, Connecticut. Granted, these latter two were horrific acts, but the reaction to them are…well, reactionary.
To understand the history of the Second Amendment and its purpose, one needs to understand a little about the English history that preceded the Constitution and America’s independence. The Stuart dynasty in Britain had attempted top disarm its citizenry which, among other things, led to a civil war. For our purposes, what came out of it was a recognition of the individual right to own and bear arms in order to resist possible future tyranny by the government. It was understood then, however, that although an individual right, there were limitations on its use. Nothing within this line of thought would have prevented the government from passing laws making death by firearms more severe than, say, death by strangulation. Furthermore, they recognized that although simultaneously an individual and a collective right, the collective right may be more important but non-existent without an individual right.
It was a republican English thinker named John Harrington who most influenced our Founders in this area and his fear was the problems encountered by having a standing army which he, like they, viewed as the biggest threat to liberty. Therefore, the individual and collective right to bear arms stood as a protection against that potential government threat and ultimate tyranny. In fact, there is ample evidence to suggest that our Founders believed that the right to bear arms and the guarantees of liberty were inextricably entwined. They also had a fear of a standing army but realized, from their recent struggles, that an army was necessary in defense of the country. If there was no “standing army,” then country would be ill-prepared for threats. The solution was twofold. First, they authorized Congress to raise an army but appropriations could only be for two years. This way, since Congress was under control of the people, the people “controlled” the military vis-a-vis the power of the purse. Secondly, they believed that individuals should have the right to bear arms.
Although not in the text of the Constitution, there is ample evidence to suggest that the right to bear arms was a serious concern and that it was an individual right. Antifederalists like Patrick Henry and George Mason insisted that this right be enshrined in the Constitution in exchange for ratification. Even the staunchest Federalist, Alexander Hamilton, recognized this when he argued for ratification in New York.
It was Madison who proposed a list of amendments that eventually became the Bill of Rights. What many do not realize is that instead of placing them as attachments to the Constitution as they are now, his original intention was to place them within the text of the document itself. It is here that we have the greatest evidence that the right to keep and bear arms is above all else an individual right. Madison wanted the right to bear arms placed in Article I, Section 9- the part of the Constitution that concerns limitations on the powers of Congress to limit or deny the rights of citizens (i.e., individuals). If he understood the right to be a collective one primarily, the obvious location would have been Article I, Section 8 Clause 16- the one that involves the power of state authority over their militias.
This, in fact, was a major point of contention in the landmark Heller decision in 2008. There, gun control proponents argued that because of the declaratory clause that opens the Second Amendment- “A well regulated militia, being necessary to the security of a free state,…-” this inferred no individual right to bear arms and that the government can even ban the possession of firearms. Madison’s own notes on the proposal clearly indicate that when written, proposed and debated, the right to bear arms was an individual right. He even cited deficiencies in the original Declaration of Rights in England where the government, through an act of Parliament (the United States Congress being its equivalent), could still “disarm” its citizenry. He noted that such state of affairs in the new republic was to be avoided and that an armed citizenry was one of the best checks on tyranny.
In its original version, Madison’s amendment juxtaposed the phrases and the “right to keep and bear arms shall not be infringed” appeared first with what became the first part about the militia serving as an explanatory clause. Additionally, there was originally a clause recognizing conscientious objection to bearing arms. When the proposal reached the Senate, it was reworded with the explanation for the right appearing first, the actual declaration of the right mentioned second and the conscientious objection clause being dropped altogether- the version that was eventually approved and ratified and the one which we know today.
Hence, from the beginning, the right to keep and bear arms was understood to be and recognized as an individual right that served a collective purpose and good. In 1822, the Supreme Court struck down a Kentucky statute banning the possession of a sword on Second Amendment grounds. Even in the 1856 Dred Scott decision, this right was tangentially approached yet recognized as an individual right.
In the intervening years, the Cruickshank, Presser, and Miller cases have been widely cited by gun control proponents as justification for laws. However, all that was essentially put to rest in the Heller and McDonald decisions in 2008 and 2010 respectively. Both of these decisions reaffirmed that the “right to keep and bear arms” is an individual right while simultaneously stressing that the government can place certain restrictions on that right just as they have a right to, for example, pass slander and libel laws, ban human sacrifice or even the use of peyote in religious practices, or define and restrict the act of demonstrations and parades even if in a political context. That is, although a clearly recognized individual right, it is like any other right granted in the Constitution.
The Heller decision in 2008 went to great pains to explain the difference between the prefatory clause and the operative clause of the 2nd Amendment. It additionally went to great pains to let it be known that gun control efforts, if reasonably tailored to serve a legitimate state interest, would be constitutional. For example, banning felons and the mentally ill from purchasing firearms certainly meets that test. Scalia, in his majority opinion, also said the government could ban private possession of certain weapons like a rocket propelled grenade launcher or a flame thrower. Some on the other side argue that any firearm can fall within the category of weapons which Scalia leaves rather amorphous. Yes, but so could a brick or a scarf or a motor vehicle for that matter.
With the McDonald decision, the question was whether the provisions of the Second Amendment coould be applied to actions by the individual states or their political subdivisions. The Bill of Rights were originally intended to address actions by the Federal government, but became applicable to the states with the 14th Amendment through what is known as incorporation. To be incorporated against actions by a state, the right must be “rooted in our history and traditions-” the so-called concept of ordered liberty. In another 5-4 decision, the Court clearly showed that it was applied although Justice John Paul Stevens stated there was nothing in the “text, history, or underlying rationale” of the 2nd Amendment to warrant incorporation. Stevens is woefully wrong considering the fact that the presence of a firearm in every home in colonial America was the norm. Alito, the opinion’s author, reasoned the right was incorporated using the Due Process Clause. Justice Thomas reasoned that it was incorporated under the Privileges and Immunities Clause. This concurring opinion by Thomas is perhaps one of his best literary contributions to the Supreme Court. Either way, “the right to bear arms” also applies to state actions.
There is currently a case working its way from the 7th Circuit Court of Appeals in Chicago which may ask the Supreme Court to revisit the issue. Illinois is the only state that absolutely prohibits the carrying of concealed weapons. Onerous regulations make it seem illegal in other states, but they do allow it. The Seventh Circuit struck down that statute and gave Illinois 6 months to either appeal or change the law. This is premised on one of the underlying rationales of firearm ownership- that of self-defense. If one is permitted to own a firearm in one’s home whether in Washington DC (Heller) or Chicago (McDonald) for self-defense purposes, then clearly they have that right in public where the chances of needing a gun for self defense purposes is greater. The Illinois Attorney General has requested that the entire 7th Circuit court rehear the case, thus they are appealing. So far, there is no word. Instead, this Friday the Court will consider a challenge to New York’s concealed carry permit law which is very restrictive and which the plaintiffs consider vague, onerous in practice and a violation of the 2nd Amendment. They will consider whether to take the case for argument in the October 2013 term.
The bottom line is that the Supreme Court has spoken in this area that the right to bear arms is an individual right. They have also ruled that it is a fundamental right applicable to states. When this is determined, the government better damn well have a very legitimate interest in curtailing that right (they do- public safety) and that they narrowly tailor the law (they haven’t thus far). Additionally, when passing these laws, there should hopefully be some rationally determined criteria to see if they are having their intended effects. An “all things being equal” situation or one where the effects are muddled at best fails the test. That is, when you start to curtail a fundamental constitutional right- and the right to bear arms clearly is- you better at least show that your action demonstrably serves a vital state interest beyond any doubt. In part 2, I hope to show that gun control efforts fail this baseline requirement.