By Lynda Bryant-Work
“What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty …. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.”
Mass, Rep. Elbridge Gerry, I Annals of Congress 750, August 17, 1789.
“The Second Amendment.”
For those who grew up in America, they have heard those words spoken with feeling – forceful and direct.
Both advocates and opposition to the Second Amendment say it.
“Why? The Second Amendment, that’s why.”
With talk of gun rights versus gun control back in full swing, the conversation is directed at the Second Amendment, avoiding any blame for the actions of criminals who don guns and commit crimes, all the while softening punishments and watering down a justice system.
The Second Amendment to the U.S. Constitution, in the Bill of Rights reads:
“A well-regulated militia, being necessary to the security to a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Scholars have analyzed the words and court and lawyers have interjected interpretations as to what is meant by “well-regulated militia” back in 1789.
Some say the founders intended to shield the rights of the individual to have weapons if militias were called on to fight, which would make sense since state militias were groups of volunteers who fought the British for independence. How else would they have warded off attacks?
Few drop back to the first words of the Constitution: We the People.
The answer to the questions concerning the Second Amendment have largely been clarified in the Heller decision of the U.S. Supreme Court in 2008 that held the Second Amendment meant individuals had the inherent right to own guns for lawful purposes.
District of Columbia v. Heller, 554 U.S. 570 (2008), is a landmark case in which the Supreme Court of the United States held that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia for traditionally lawful purposes, such as self-defense within the home, and that Washington, D.C.’s handgun ban and requirement that lawfully-owned rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock” violated this guarantee.
It also stated that the right to bear arms is not unlimited and that guns and gun ownership would continue to be regulated. Due to Washington, D.C.’s special status as a federal district, the decision did not address the question of whether the Second Amendment’s protections are incorporated by the Due Process Clause of the Fourteenth Amendment against the states, which was addressed two years later by McDonald v. City of Chicago (2010) in which it was found that they are. It was the first Supreme Court case to decide whether the Second Amendment protects an individual right to keep and bear arms for self-defense.
On June 26, 2008, the Supreme Court affirmed by a vote of 5 to 4, the Court of Appeals for the D.C. Circuit in Heller v. District of Columbia. The Supreme Court struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are “arms” for the purposes of the Second Amendment, found that the Regulations Act was an unconstitutional ban, and struck down the portion of the Regulations Act that requires all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock”.
Prior to this decision, the Firearms Control Regulation Act of 1975 also restricted residents from owning handguns except for those registered prior to 1975.
Heller applied that standard to overturn a ban on privately held handguns, enacted in the District of Columbia.
The same Supreme Court decision is being applied to defend the private ownership of AR-15-type rifles, which have incorrectly defined as “assault weapons.”
Advocates of gun control and confiscation of weapons would say the AR-15 is an assault weapon based largely on the cosmetics of the rifle. But the AR-15 does not function at all like an assault weapon. It is a sporting rifle.
Facts about the rifle are clear, though ignored by the gun-control faction.
The AR in the AR-15 stands for ArmaLite rifle and named after the company that developed it in the 1950s. It does not stand for “assault rifle” or “automatic rifle”. Automatic rifles are fully automatic – such as a machine gun. Automatic firearms have been severely restricted from civilian ownership since 1934.
“Assault weapon” is political term created by anti-gun legislators to ban some semi-automatic civilian sporting firearms which fire only one round with each pull of the trigger.
Congress tried to ban “assault-style” weapons in 1994 but put a 10-year sunset provision in the law. It survived court challenges at the time, but when the 10-year term had passed, the majority control of Congress had also passed — from the Democrats, who had enacted the ban, to the Republicans, who let it lapse.
Since then, all efforts to restrict the sale of such weapons have failed. Even relatively bipartisan attempts at strengthening other restrictions, such as the Manchin-Toomey background check expansion bill in 2013, have fallen short of the necessary super-majority needed for passage in the Senate.
In each case, defenders of gun rights have invoked the Second Amendment, the text that casts a long shadow across all discussions of guns in the U.S. At times, it seems to all but end such discussion.
If new restrictions are enacted — a prospect far from certain — they will surely be tested in the courts. There, it will be argued that they infringe on the rights of law-abiding citizens to “keep and bear” firearms.
In other words, they will run afoul of, that’s right, the Second Amendment.
While it is conceivable the Second Amendment could be mutilated in the future, it would be in a very different United States than is today.
Gun control isn’t about guns – it’s about control. And the right to bear arms isn’t about the arms – it’s about the right. The protection of individual liberty is the job of the government, but it is not exclusively the job of the government. It is first and foremost the job of “We the People.”