It should be well stated that the culture war, facilitated clearly by both sides, but seemingly dominated by one side that focuses on propaganda, is only just a culture war. There’s a festering fringe like fear on the part of many gun-rights enthusiasts that the government is going to take their guns away. You can check out an interview with Wayne LaPierre here that sums up the perspective, indeed, what seems to be a worldview. Still, there’s no chance that any sitting president would successfully be able to “take” a person’s gun away, not legally, and more than likely not even by force. There’s a difference between taking someone’s gun away, and preventing people from obtaining certain guns, and regulating how guns should be handled in a public setting, or whatever scope that might be. Relegating any kind of regulation as being akin to unconstitutionality is unrealistic, and, frankly, constitutionally false.
If you don’t think it’s constitutional for gun control to even exist, you should look to United States v. Miller, 307 U.S. 174 (1939). This case had to do with whether or not it was constitutional for the National Firearms Act to ban the sale and transport of shotguns. The court held that, given the language of the Second Amendment, that it was permissible to regulate such a weapon because there was no evidence that it was in common military use. Therefore, civilians didn’t need access to it as it had no distinct purpose related to a well regulated militia. For more detail, you can read the opinion of the court here.
Quite some time later, in 2008, the Supreme Court of the United States would again tackle the Second Amendment as it pertained to a District of Colombia (D.C.) regulation on guns in District of Columbia et al v Heller, No. 07-290 (2008). This law, in effect, required weapons in the home to be effectively inoperable, even if it was necessary for self defense. Scalia, Roberts, Kennedy, Thomas and Alito were the majority opinion, while Stevens, Souter, Ginsburg, and Breyer opposed it, with Stevens and Breyer filing dissenting opinions. The majority opinion ruled that, 1) the second amendment protects an individual right to possess a firearm, even if that possession is unconnected to the militia, 2) the second amendment protects an individual’s right to use said weapon for purposes of self defense within the home. Scalia, writing for the court, pointed to state constitutions that had adopted similar clauses as the second amendment that pointed towards an individual ownership right. He also pointed to the drafting history of the second amendment. That being said, to quote Scalia:
“United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.”
And,
“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. 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.”
That being said, the reason that the D.C. trigger-lock requirement was found to be in violation of the second amendment is because hand guns are the most common weapon owned for purposes of self-defense. The law prevented the use of a weapon to protect ones’ self, it amounted to a total hand gun ban on an entire class, or so Scalia wrote.
As I noted before, Stevens and Breyer filed dissenting opinions. Stevens outlines why the opinion in United States v. Miller was faithful to the Second Amendment by focusing on the drafting history of the amendment. He follows this analysis by what occurred after ratification and argues that the amendment should not be interpreted as limiting congress’ authority to regulate the use or possession of firearms for civilian use. More importantly, Stevens’ dissent is a good example of the difference between interrelations, but neither is less valid than the other. Still, interpretation can erode facts, and whereupon such erosion occurs, opinion seems to then fill in the new found space. Regardless, Stevens agrees with Miller’s original interpretation of the second amendment as being a collective right, rather than such an individualistic view. Indeed, Stevens points to the fact that a number of Scalia’s arguments, which were in favor of the court’s eventual majority opinion, were fashioned not from arguments proposed on either side, but Scalia himself. An example of this would be:
“As a threshold matter, it is worth pausing to note an oddity in the Court’s interpretation of “to keep and bear arms.” Unlike the Court of Appeals, the Court does not read that phrase to create a right to possess arms for “lawful, private purposes.” Parker v.District of Columbia, 478 F. 3d 370, 382 (CADC 2007). Instead, the Court limits the Amendment’s protection to the right “to possess and carry weapons in case of confrontation.” Ante, at 19. No party or amicus urged this interpretation; the Court appears to have fashioned it out of whole cloth. But although this novel limitation lacks support in the text of the Amendment, the Amendment’s text does justify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia.”
Stevens isn’t alone, though, in the opinion that not only was precedent ignored, but also, for all intents and purposes, rewritten. Breyer also filed a dissenting opinion and touched on this very similar view of the majority opinion. Breyer, however, goes a whole different route, by pointing out the D.C. hand gun ban wasn’t a response to gun ownership, per se, but that it was a response to urban crime – a state response that was well within constitutional authority. Breyer, in effect, is arguing that the ruling slapped state sovereignty, even congressional authority, right in the kisser when it comes to the ability to tackle crime. Breyer states:
“… the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern…
…the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are—whether they do or do not include an independent interest in self-defense—the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendmentterms. This the majority cannot do…
…the District’s law is consistent with the Second Amendment even if that Amendment is interpreted as protecting a wholly separate interest in individual self-defense. That is so because the District’s regulation, which focuses upon the presence of handguns in high-crime urban areas, represents a permissible legislative response to a serious, indeed life-threatening, problem.”
This may be true. Although Scalia noted, and as I quoted above, that the right to gun ownership isn’t unlimited, the point remains that there are square differences between the liberal and conservative perspectives of the second amendment, and how it should be interpreted. Breyer outlines gun laws in colonial history as it pertained to urban areas, and concludes that D.C.’s gun law was within that scope, and not in violation of the second amendment. To quote:
“To the contrary, colonial history itself offers important examples of the kinds of gun regulation that citizens would then have thought compatible with the “right to keep and bear arms,” whether embodied in Federal or State Constitutions, or the background common law. And those examples include substantial regulation of firearms in urban areas, including regulations that imposed obstacles to the use of firearms for the protection of the home…Boston, Philadelphia, and New York City, the three largest cities in America during that period, all restricted the firing of guns within city limits to at least some degree.”
This all having been said, the most recent Supreme Court case, McDonald v. City of Chicago, No. 08-1521 (2010), decided that the second amendment applied to the states through the process of incorporation via the fourteenth amendment, but as to which clause placed indoctrination was made unclear. You can read the opinion summary here. Alito wrote the opinion of the court, with Scalia and Thomas filing concurring opinions, while Stevens and Breyer each filed dissenting opinions. Stevens and Breyer believe this case to be a substantive due process issue. I will not delve deeper into this case, and instead rest with saying that this case only bolstered the second amendment. I highly encourage you to read the cases for yourselves, as well as the opinions.
I should sum up by simply saying that clearly this is a sticky topic when it comes to history, and case law. What’s most striking to me, however, is the abstinence on the part of the gun-rights enthusiasts to even acknowledge evidences that rejects their strict, albeit perfectionist views of the second amendment. The right to bear arms is not absolute. State governments have the authority to regulate weapons, as does the federal government. What McDonald, and Heller fail to do, much to the agreement of Stevens and Breyer, is outline the kind of scrutiny that any gun regulation should go through. What constitutes a law, exactly, that is so restrictive that it constitutes a violation of the second amendment? There are other questions that the court simply has yet to answer. It should also be noted that it is likely that the Supreme Court will continue down the current path of loosening the amendment to fit common perspectives now, in that it was clearly intended for individual right to ownership. I would suggest that such an interpretation is anything but clear – murky at best. Regardless, the court has grown increasingly more conservative, and Heller and McDonald only go further to show this. These are two examples, along with other cases for which I have mentioned, that show the conservative leaning justices as essentially re-writing the constitution by ignoring case precedence.
So, to end this part, no one is going to take your guns away. You have an individual right whether or not the second amendment gives you that right – Scalia and Alito have given it to you nonetheless. Further still, no one is going to take your guns away. It is that simple.
Willis and law Online 