23 July 2008

The Constitution: The Second Amendment

The Objectivist
Dunkirk-Fredonia Observer
July 1, 2008

In the recent case, District of Columbia v. Heller, 554 U.S. ____ (2008), the Supreme Court held by a 5-4 vote that the Second Amendment protects an individual’s right to own a gun and that this right does not depend on whether an individual serves in a militia. Rather, it protects gun ownership and use for traditionally lawful purposes such as self-defense. In dissent, Justice Stevens argued that the Constitution only protects the right to possess and carry a firearm in connection with militia service. Because we now have a standing army that makes militias superfluous, he in effect argued that the Second Amendment is dead.

The District of Columbia prohibited handguns. More specifically, it made it a crime to carry an unregistered handgun and then prohibited anyone from registering one. It backed this prohibition with a one-year sentence for a first violation and a five-year one for a second offense. It also required lawfully owned guns, such as long guns, to be unloaded and disassembled or bound by a trigger lock or similar device. The case was brought on behalf of Dick Heller, a D.C. special police officer who carries a handgun while on duty at the Federal Judicial Center. He applied to register a handgun and his application was turned down.

The Supreme Court struck down the law as unconstitutional and held that if Heller is not unqualified, the District must grant him a license. It did not address whether there can be a licensing requirement. It also held that government at different levels may deny ownership to felons and the mentally ill, may prohibit carrying guns in sensitive places like schools and government buildings, and may regulate commercial gun sales.

The Second Amendment states that “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 first clause is the prefatory clause and the second clause is the operative clause. The majority had a number of arguments for its claim that the Amendment protects an individual right.

First, on behalf of the majority, Justice Scalia argued that the operative clause supports an individual right. He began by noting that the “right of the people” phrase in the operative clause is found elsewhere in the Constitution. Elsewhere, When it is linked to rights, the phrase protects an individual right. The other areas are the First Amendment’s Assembly-and-Petition clause, the Fourth Amendment’s Search-and-Seizure Clause, and the Ninth Amendment’s protection of unenumerated rights. In addition, whenever the phrase “the people” is used in the Constitution, it refers to all members of the political community. This pattern suggests that it is unlikely the founders used the phrase “the people” to refer merely to men in the militia.

Scalia further argued that other parts of the operative clause also support this interpretation. For example, the phrase “keep and bear arms,” was applied in the 1700’s to refer to the possession and carrying of weapons that were not specifically designed for military use. Justice Stevens countered that “bear arms” refers narrowly to the carrying of arms in the service of an organized militia, but, as Scalia points out, no dictionary has ever adopted this definition. In addition, this would make “bearing arms” hard to fit with the “keeping” (possessing) of arms.

Second, Scalia argued that the individual-right interpretation fits with the prefatory clause. He points out that “militia” refers to “all males physically capable of acting in concert for the common defense.” If the goal was to preserve weapons only in this group, it is odd that the phrase “the people” would have been used. Scalia argued that the prefatory clause makes sense when viewed in historical context. What motivated this clause was the desire to prevent the federal government from disarming the militia, which was one way tyrants used to eliminate threats to themselves. Scalia points out that this motivation was consistent with the founders also valuing the right because of its connection to self-defense and hunting.

Third, Scalia pointed out that individual-right interpretation fits with the history of the Amendment. The Amendment, he argued, codified a right inherited from our English ancestors. This is why a similar individual right was found in the English Bill of Rights and Blackstone’s commentaries on the Laws of England.

Particularly worthy of note was Scalia’s observation that four state constitutions that preceded the adoption of the Amendment protected an individual right to bear arms. In the period following the adoption (1789-1820), at least seven other states adopted provisions that protected an individual’s own and carry a gun. This is strong evidence of how the founding generation viewed the right. On the dissent’s view, the Second Amendment was disconnected to the right protected by the preceding English common law and the preceding and subsequent state law. This is implausible, particularly when seen in the context of the Amendment’s language.

In response, Justice Stevens argued that the Second Amendment was motivated by the fear that the federal standing army would threaten individual liberty and the states’ sovereignty. On this account, the Amendment reflected the desire to protect the states’ militias as a means to guard against this danger. This was linked with the recognition that the state militias could check the prospect of a federal standing army only if Congress lacked the power to disarm them and the Amendment prevented disarmament. In addition, Stevens claimed there is no evidence in the historical record that the Framers wanted to protect civilian weapon possession or use. On this account, the prefatory clause set forth the purpose of the operative clause and narrowed its meaning.

However, Stevens’s opinion does little to handle the inconvenient use of the phrase “the people” in other parts of the Constitution and the oddity of supporting an interpretation which fits poorly with the animating British law, subsequent state laws, and precedent. He does make a good point about the drafting history of the Amendment weighing against the individual-right interpretation, but not enough to defeat the totality of the majority’s case.

Two objections that assume an individual right are worth noting. One objection was that the state should be permitted to ban handguns so long as it allows other weapons such as long guns. The Court responded that handguns have long been considered the typical self-defense weapon and hence should be protected. Such guns do not require much strength, are harder for an attacker to wrestle it away, and can be stored in a readily accessible place.

A second objection was that permitting handguns is bad policy because it will lead to death and destruction. The Court responded that even if this is true, it’s irrelevant. The Constitution acts to take certain policy choices off the table. That is, the Constitution has an anti-democratic function and to ignore this function is to ignore the Constitution.

This case is important for it is the one bright spot in slew of recent cases that ignored the Constitution in order to green-light government interference in every aspect of our lives. Recent examples include gutting the Commerce Clause (which limits Congressional power to a few enumerated functions and the power to regulate interstate commerce), revoking the Takings Clause (which limits the government’s ability to take property unless the government or a substantial part of the population will use it), and tearing holes in the First Amendment as part of campaign-finance laws and anti-pornography laws.


The Objectivist said...

I'm not quite sure how the fact that a handgun is the typical self-defense weapon and easier to handle than a rifle fits into the Court's overall opinion. Does this relate to the understanding at the time the Constitution was ratified?

The Objectivist said...

Justice Breyer's claim that the individual right should be subject to a balancing-of-interests test is disturbing because (1) this not how Constitutional rights have worked or should worked and (2) with Breyer-like Justice, one can imagine that the state will always win.

Breyer is the most predictable justice. He will always back the government, except in the most politically correct cases. What a disgrace.

The Objectivist said...

Note that Scalia looked at the public understanding at the time at the litmus test. It is hard to square this with the arguments from original intent. This case thus seems to have two types of originalist thinking.