Supreme Court Confronts ‘Right to Bear Arms’ in Case

Supreme Court Confronts ‘Right to Bear Arms’ in Case by Stephen P. Halbrook (Posted here at the request of The Independent Institute)

“That would be an odd ‘right of the people’ if limited to militias,” commented Chief Justice John Roberts in the Supreme Court hearing March 18 in District of Columbia v. Heller.

The case concerns whether the District of Columbia’s ban on handguns violates the Second Amendment guarantee that “the right of the people to keep and bear arms, shall not be infringed.”

Referring to the American Revolution, Justice Antonin Scalia noted that “tyrants took away the people’s weapons, not just those of the militia.”

For the American settlers, Justice Anthony Kennedy added, “Wasn’t there a need for self defense against Indian attacks, robbers, wolves and grizzlies?”

In recent years, Kennedy is the swing vote in close cases.

The founders were not concerned with personal protection, insisted Walter Dellinger—solicitor general during the Clinton Administration, and now arguing for D.C.—but only with “bearing arms” in the militia.

“Does the amendment have any effect today?” queried Justice Ruth Bader Ginsburg.

“Only if a federal law restrained state militias,” Dellinger responded.

So this “right of the people” has shriveled into a meaningless gesture exercised only by permission of the government. But the “exclusively militia” interpretation is only a facade. Those who deny this right of the people would be equally opposed to a robust state militia system in conflict with federal authority.

The text of the Constitution already had a militia clause. As Kennedy noted, the preamble to the Second Amendment—“a well regulated militia, being necessary to the security of a free state”—supplemented that clause. “My view is that the amendment guarantees a general right to bear arms without reference to the militia.”

And Scalia added that historically, English bans had been imposed on possession of arms by oppressed groups, such as Roman Catholics and Scottish Highlanders.

Which “arms” are constitutionally protected? One test is whether the arms are of a type “commonly possessed” by the people.

Dellinger tried to scare the court away from sanctioning handguns under this test, on the basis that it would also sanction machine guns, of which more than 100,000 are registered with the feds. Not an impressive number, given our population of 300 million.

Solicitor General Paul Clement argued, on behalf of the United States, that the right is individual, but that the court should not decide whether the D.C. ban is unconstitutional.

This “just don’t know” attitude may be explained by fears that the Justice Department’s prosecutions of citizens under this very ban for 30 years might be reopened.

Clement also worried that voiding the ban would question restrictions on machine guns and armor-piercing ammo, but Chief Justice Roberts reminded him that the only issue is handguns.

Justice David Souter found “keep and bear” to be a unitary concept “what is served by bear, if you can keep?” He quipped that “you do not bear arms to hunt; no one in the 18th century talked that way.”

“Keeping” refers to possession in the home, Clement responded, and “bearing,” to carry.

Jefferson sponsored legislation specifically referring to “bearing a gun” while hunting.

Alan Gura presented the case for Dick Heller, the court security guard who lives in Washington, D.C. and protects judges with a handgun by day, but is not trusted with having one when he goes home.

Justice Stephen Breyer queried how handguns had a militia purpose, and why was it not reasonable to ban them, given the high murder rate?

“The handgun ban,” Gura responded, “weakens military preparedness.”

Some seemed ready to scrap a militia arms test. “The second clause of the Second Amendment,” insisted Scalia, “goes beyond the militia—it is a right of the people. Why not acknowledge that?”

Kennedy stated that a machine gun is more related to the militia than the handgun, but the latter is relevant to the homeowner.

Stevens asserted that “only” two of the original states, Pennsylvania and Vermont, had arms guarantees referring to self-defense, and “all the others were for common defense.”

Yet only two other states—North Carolina and Massachusetts—had an arms guarantee, and both accorded the right to “the people,” even though they referred to common defense purposes. As Gura pointed out, those provisions were interpreted to recognize self-defense.

As is usual, the justices engaged in their own fencing match.

“Look at the murder rate, the crime statistics,” anguished Souter.

“All the more reason to allow homeowners to have handguns,” implored Scalia.

Long guns, even though they must be trigger-locked and unloaded, would do fine for home defense, Dellinger insisted as the last word. He could remove the lock in three seconds, albeit in daylight.

“And how long if you’re awakened at 3 a.m. and you reach for the lamp and your reading glasses?” Scalia asked, to general laughter.

Justice Clarence Thomas asked no questions. But a decade ago, in Printz v. U.S., he wrote an opinion appearing to favor the individual-rights view.

Looks like the Supreme Court is finally ready to recognize the Second Amendment as a real part of the Bill of Rights, and that D.C.’s ban is in big trouble.

Stephen P. Halbrook, Ph.D., J.D., is Research Fellow at The Independent Institute in Oakland, Calif., and author of the forthcoming book, The Founders' Second Amendment: Origins of the Right to Bear Arms, as well as the books, That Every Man Be Armed (Independent Institute) and Freedmen, the Fourteenth Amendment, and the Right to Bear Arms.

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Comments

[Rick A Hyatt]

OH, THIS IS NOTHING! Next Step? Will be when I am subpeona'd for my testimony on my past 30+ years as an US Army "Manchurian Candidate Study" subject.
(Go to www.rickhyatt.freeservers.com to see just how immersed I AM in this espionage business - Hope you have Piclens, for I've got PHOTOS of past major spies I have known long-term along this line you won't believe!)
That is to say, my own mission as a "Sleeper," totally controlled, of course, by the FBI and (Double-Blind, unknowingly) "Social(ist) Services," was to "Act up" (Utilizing special psychological and physical attributes such as clinical hypnosis and Celiac's Disease, which causes reversible neopathy) to the degree that I became "One of those who shouldn't own a gun... and thusly influence on-going anti-gun legislation. I was successful in helping Maui Waiver Form 2036 (Allowing the corrupt politicians to search a gun applicant's ENTIRE LIFE'S medical, sexual etc. files) and then exploit same for political purposes on Maui. Coming then here to Wyoming, hearing of my "Reputation" they specially whipped up our Concealed Carry Permit Restriction, for such " a person like me... Then, when I passed the NCIC, etc., and got a Florida Permit, valid here, they passed a special law - JUST FOR ME- ILLEGAL AS HELL - Such that it could not be used here, as examples.
My "Behavioral Programming?" To act unnaturally conservative, pro-Constitutional, openly Patriotic, and to be vocal about it. Be "Dumbed Down" from the Celiac's by eating bread and drinking beer. Couldn't have made a better target and/or "Dummy" for the Liberals to use as an "Example."
Now... Since so many anti-gun laws are based on the acts of the Columbine, Post Office, Mall otherwise-untraceable (By the APA, anyway) "Sleepers" (As myself), then how can ANY OF THOSE LAWS BE VALID AT ALL?

"Telling the truth during times of universal deceit will be a revolutionary act." George Orwell, "1984"

[Herb Martin]

One of the weakest elements of the Heller case was (and may turn out to be most harmful) was the general failure (briefs and oral response by Gura) to deal with the 'long guns are available' argument.

Long guns are generally MORE dangerous to accidents, and in a city environment their on average higher power and longer range will cause them to harm more innocent people than pistols.

Pistols are more maneuverable and can be kept available -- that whole 'trigger lock on the RIFLE next to the bed at 3AM' exchange would have been better handled by the simple fact that no one can PLACE the rifle on the bedside table, much less lock it in the drawer.

To be safe when unattended that rifle needs to be in a floor standing safe or locked cabinet/closet -- likely in ANOTHER (think "the wrong") room.

[Debbie]

Maggie, thanks. Sometimes the Independent Institute has articles that I completely agree with, then other times I completely disagree. Either way, they make you think about what you believe and why.

MK. Must have been a great article. I think every home should be armed, trained and ready to defend themselves.

[MK]

The other day i read an article in a magazine, it was showing pictures of many families across America who own guns. So many guns Debbie, i was so green with envy. One family even had an AK-47 for home defense. Out here there are even strict rules for fake guns, let alone the real thing. I hope and pray you always remain a free nation America, for it your guns are taken away, where will the those of us yearning for freedom flee to.

[Maggie Thornton]

I don't think the Founders ever thought about advocating for disarming citizens.

This is a great piece.

Maggie