The Bill of Rights is Experience - Not Mere Words

In 2008, The U.S. Supreme Court decided District of Columbia vs. Heller, construing the meaning of the words found in the Second Amendment.

                  "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 District of Columbia insisted that the American people have a right that "shall not be infringed" to "keep and bear arms,"but only in connection with "militia" service. The court rejected the District's contention, holding that the right to keep and bear arms is personal to the individual.


A well-respected local columnist has now disagreed with Heller's holding.

                   "The ludicrous position we are in would not be possible without ignoring
                    the first thirteen words of the Constitution’s Second Amendment: "A well
                    regulated Militia, being necessary to the security of a free State ..."

                    "Anyone conversant with the English language would recognize this as the
                    rationale for not infringing the right of the people to keep and bear arms.
                    With the rationale gone — States now maintain a National Guard for which
                    weapons are supplied — it would seem the ground on which the amendment
                    stands has caved. I’m surprised the Supreme Court’s "originalists" haven’t
                    noticed this. They might also examine the argument for the amendment in the
                    first place."


His disagreement is premised on (1) "thirteen words," and (2) the existence of the National Guard.


Our Constitutional Rights, however, have never been understood solely by looking at words on paper. They have always been understood by looking to the historical experiences of the English and American peoples. Most are responses to abuses of royal power. These rights, including the right to keep and bear arms, pre-existed our Constitution. The Constitution does not grant these rights; it recognizes as the inalienable rights of free men.


The most basic right of any man, is the right to act in self-defense. This includes the right to defend family. It is not dependent on the existence of militia, National Guard or police.


Early Americans, who lived in the newly formed towns, and in or on the edge of the wilderness, kept guns for defense of themselves and their families. The kept them for use during militia service, but also when at home to protect themselves and their families from robbers and hostile Indians. It is that pre-existing right that is guaranteed by the Second Amendment.


The Court considered our columnist's "13 words." His argument was forcefuly advanced by Mr.
Justice Breyer and rejected.

The Court construed the words of the Amendment consistently with the history and usages of firearms by the American people. In the process, it reviewed English history, our colonial history, the Federalist/Anti- Federalist debates, drafts of the 2nd Amendment, similar State Constitutional provisions, legal writers, Constitutional scholars, and the Court's own precedents.


It then wrote,

                "We reach the question, then: Does the preface (the "13 words") fit with
                 an operative clause that creates an individual right to keep and bear
                 arms? It fits perfectly, once one knows the history that the founding
                 generation knew and that we have described above. That history showed
                 that the way tyrants had eliminated a militia consisting of all the able-
                 bodied men was not by banning the militia but simply by taking away the
                 people’s arms, enabling a select militia ... to suppress political opponents.
                 This is what had occurred in England that prompted codification of the
                 right to have arms in the English Bill of Rights.


                "We hold that the District’s ban on handgun possession in the home violates the

                Second Amendment... Assuming that Heller is not disqualified from the exercise 

                of Second Amendment rights, the District ... must issue him a license to carry it 

                in the home.


               "We are aware of the problem of handgun violence in this country, and we
               take seriously the concerns raised ... The Constitution leaves the District
               ... a variety of tools for combating that problem ... But the
               enshrinement of constitutional rights necessarily takes certain policy
               choices off the table. These include the absolute prohibition of handguns
               held and used for self-defense in the home. Undoubtedly some think that
               the Second Amendment is outmoded in a society where our standing
               army is the pride of our Nation, where well-trained police forces provide 

               personal security, and where gun violence is a serious problem. That is
               perhaps debatable, but what is not debatable is that it is not the role of
               this Court to pronounce the Second Amendment extinct."


Without the right to possess and use a gun in your own defense when home is invaded by an armed intruder, all your other Constitutional rights, can in an instant, be irretrievably taken from you. Murderers aren't concerned about affording their victims fair trials, due process, freedom of speech or the free exercise of religion.

This piece was published originally in the Moline Dispatch, Rock Island Argus and QC Times on June 19, 2020

Copyright 2020, John Donald O'Shea