"A well regulated Militia, being necessary for the security of a
free State, the right of the people to keep and bear Arms shall not be
infringed." -- Second Amendment
I recently found myself verbally mugged in a parking lot by a liberal friend, incensed by the U.S. Supreme Court's holding in D.C. v Heller. He insisted five of the conservative members ignored "the normal rules of statutory construction," and in effect overruled the court's own prior precedents construing the Second Amendment.
He specifically objected to the Heller court's holding that "the right of the people to keep and bear Arms shall not be infringed," was an individual right.
He argued the court utterly and erroneously ignored the first clause of the amendment which states "A well regulated Militia, [is] necessary for the security of a free State."
I tried to argue Heller was the most thorough and carefully written opinion the court had ever handed down construing the amendment, and that the case had its underpinnings not in "the normal rules of statutory construction" (a legal device of last resort), but rather the "historical experience" of the English people, including the American colonists, in 1789 and before.
Excerpts from Heller illustrate my points.
The court first noted the phrase "the right of the people" appears three times in the Bill of Rights. It is found in the First, Second and Fourth Amendments, with a similar phrase in the Ninth Amendment. In the court's words, "Nowhere else in the Constitution does a 'right' attributed to 'the people' refer to anything other than an individual right."
The court then looked at history: "the "militia" in colonial America consisted of a subset of 'the people' -- those who were male, able bodied and within a certain age range."
The court pointed out, "the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty."
The point being, if they were expected to bring the weapons "they possessed at home," they must have had a right to possess the weapons they were bringing.
It then said, "Reading the Second Amendment as protecting only the right to 'keep and bear Arms' in an organized militia therefore fits poorly with the operative clause's description of the holder of that right as 'the people.' We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans."
The court moved from parsing words about the individual's right to keep and bear arms and looked at early state constitutions.
"Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them -- Kentucky, Ohio, Indiana, and Missouri -- referred to the right of the people to 'bear arms in defence of themselves and the State.' Another three States -- Mississippi, Connecticut, and Alabama -- used the even more individualistic phrasing that each citizen has the 'right to bear arms in defence of himself and the State.
"It is clear from those formulations that 'bear arms' did not refer only to carrying a weapon in an organized military unit."
The court then looked to the historical background that preceded the Second Amendment, and one of its own early pronouncements.
"This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.' As we said in United States v. Cruikshank (1876), '[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed.'"
The Court examined what the English people -- including American colonists -- believed their rights to be before our Constitution was adopted in 1789.
"By the time of the founding, the right to have arms had become fundamental for English subjects. ... Blackstone, whose works, we have said, 'constituted the preeminent authority on English law for the founding generation,'... cited the arms provision of the [English] Bill of Rights as one of the fundamental rights of Englishmen. ..." It was, he said, 'the natural right of resistance and self-preservation,' ... and 'the right of having and using arms for self-preservation and defence,' ... Thus, the right secured in 1689 [in the English Bill of Rights] as a result of the Stuarts' abuses was by the time of the founding understood to be an individual right protecting against both public and private violence."
"And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760s and 1770s, the Crown began to disarm inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that '[i]t is a natural right which the people have reserved to themselves, confirmed by the [English] Bill of Rights, to keep arms for their own defence.' ... They understood the right to enable individuals to defend themselves. ... Americans understood the 'right of self-preservation' as permitting a citizen to 'repe[l] force by force' when 'the intervention of society in his behalf, may be too late to prevent an injury.'"
Heller's underpinnings are primarily found in the historical experience of the English people, including their American colonists -- not in "rules of statutory construction." These people believed they had a historical right to keep and bear arms for their own defense.The Second Amendment says "right of the people to keep and bear Arms shall not be infringed." You can't infringe a right unless it already exists.
The bottom line, in the words of the Heller majority, is this:
"If ... the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, [and] the organized militia is the sole institutional beneficiary of the Second Amendment's guarantee -- it does not assure the existence of a 'citizens' militia' as a safeguard against [governmental] tyranny. ...
"For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force. ... It guarantees a select militia of the sort the Stuart kings found useful, but not the people's militia that was the concern of the founding generation. "
Posted Online: May 15, 2013, 11:00 - Quad-Cities Online
by John Donald O'Shea
Copyright 2013
John Donald O'Shea
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