Gun Battle Continues

June 17th, 2009

The gun control battle isn’t over yet, but the end is getting closer.  The Supreme Court is likely to hear a case of some sort before too long that will resolve the question of whether the Second Amendment applies to the states.

It may surprise some that not all of the amendments known as the Bill of Rights apply to the states.  These first 10 amendments, proposed by some of the Founders and adopted after the Constitution was in force, were intended to protect the people and the states against the development of excessive power by the federal government.  Until fairly recently, none of them applied to the states.

Most of the first eight amendments of the Bill of Rights have already been incorporated against the states by Supreme Court decisions that rely mainly on the Fourteenth Amendment.  Not incorporated against the states, so far, are the Second Amendment, the Fifth Amendment right to indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil lawsuits.

The Ninth and Tenth Amendments, largely and unfortunately ignored in the modern era, aren’t at issue because of their content and purposes.

The recent landmark Supreme Court decision on the meaning of the Second Amendment is applicable to only the federal government and the District of Columbia, which is not a state and which is governed by federal law.  The Court made it clear in that case, District of Columbia et al. v. Heller (2008):

United States v. Cruikshank [1875] … held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right “is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. The second amendment … means no more than that it shall not be infringed by Congress.”  

We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens.

This issue now is the question of incorporating the Second Amendment against the states.  The Ninth Circuit Court of Appeals has ruled that the amendment does apply to the states, and for the moment that affects Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands.

The Second and Seventh Circuit Courts of Appeal have ruled that the Second Amendment does not apply to the states.  That includes Connecticut, New York, Vermont, Illinois, Indiana, and most of Wisconsin.  (As a point of interest, Judge Sonia Sotomayor joined the Second Circuit decision that did not apply the Second Amendment to the states.)

The other Circuit Courts haven’t ruled definitively on the issue.

In a situation like this, with the circuits split, the Supreme Court can be expected to act fairly quickly to resolve the situation.  That’s obviously necessary because the nation is now divided into three large segments — the Second Amendment applies to the first and doesn’t apply to the second, and the third is in limbo. 

The Supreme Court will probably accept on appeal one of several cases, setting the stage for a final decision.  While the Court often confounds predictions, it will most likely end up incorporating the Second Amendment against the states.

However, opponents of gun control shouldn’t get overly excited.  Just because the Second Amendment now clearly gives people the right to keep and bear firearms, state legislatures and Congress can still enact laws that restrict the use and ownership of guns in a variety of ways.  As Eugene Volokh, among other things a professor of law at UCLA, says, “There is a right to bear arms, but it’s not absolute.”  Like all other constitutional rights, there are logical and reasonable exceptions. 

As I’ve made clear in Gun Control and elsewhere, I support highly restrictive control of handguns, with lesser restrictions on long guns.  Federal and state laws already variously restrict or prohibit private ownership of a long list of weapons that are especially dangerous — automatic firearms, silencers in some cases, knives of certain kinds, various martial arts devices, mortars, rocket launchers, grenades, mines, howitzers, tanks, and so on.  Handguns, which are designed for the primary purpose of killing people, are demonstrably no less dangerous.  Anyone who is tempted at this point to start arguing about defense of hearth and home, forget it.  The most effective weapon for home defense is a shotgun; a rifle will do nicely, too.

For additional information:

Gun Rulings Open Way to Supreme Court Review, The New York Times
Incorporation (Bill of Rights), Wikipedia (this is an excellent overview)
United States Bill of Rights, Wikipedia


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4 Responses to “Gun Battle Continues”



  1. Harvey |

    I can’t argue that the shotgun and rifle are not the most effective arms for home defense but it baffles and infuriates me that 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.” can be interpreted as anything but what it says: the people have the right to keep and bear arms and the Federal government has NO right to infringe upon that right or reinterpret the Amendment.


  2. Tom |

    I don’t argue with the meaning of the Second Amendment. I think the Supreme Court’s ruling in the Heller case was correct. However, just like there’s no such thing as absolute truth, there’s no such thing as absolute rights, as long established in constitutional law.

    An absolute statement is refuted by only one contrary example. In the case of the Second Amendment, the examples of restricted or prohibited weapons provide many more than one example. I doubt that any of these will ever be overturned by a court, and that’s the way it should be.


  3. Brian Bagent |

    Tom, of course a handgun is demonstrably less dangerous than a rocket launcher or grenade.

    I know lots of women that cannot even handle a 20 ga, let alone a rifle that might actually be useful in CQB. Further, how might a single person wield a shotgun or rifle against 2 or 3 assailants in a public place?

    Lastly, the constitution does not in any way “give us rights.” The constitution merely enumerates certain rights. As an example of the idea of “granting rights” or “having rights,” would you argue that women in the ME do not have the same rights as women in the West, or is it that their rights are simply being abridged?

    I would argue that governments do not grant rights, rather they grant privileges. Our rights are native to us from the moment of conception, and laws can only suppress those rights. The fact that our founders believed the same thing is embodied in the 9th amendment.

    The 9th amendment reads as follows:
    [b]The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.[/b]

    Here’s a quote from Hamilton’s Federalist #84:
    [i] It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Carta, obtained by the Barons, sword in hand, from king John…It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. “We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.” Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government….

    I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? [b]I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.[/b] [/i] (emphasis added)


  4. Tom |

    I say that handguns are demonstrably no less dangerous than types of weapons now restricted because of the the number of people who die by handguns every year. You may question the logic because the other weapons I listed are not in the hands of citizens. Fine. But the reason those weapons are prohibited is because they are so deadly and people have no reason to have them. I maintain that the same is true of handguns.

    I don’t buy the arguments that go something like: handguns are easier to use in close quarters; the little woman can’t handle a shotgun, but she can do just fine with a handgun in a firefight; if I meet up with a bad guy I can draw my handgun more quickly; etc. This is nonsense. Average citizens virtually never get in firefights, as you well know. In the rare cases where a handgun might be useful, the citizen wielding it is more likely to shoot himself or a bystander than he is to hit the bad guy. You know these things.

    You were a police officer, I was a professional soldier. We both lived in environments where weapons of all sorts were part of the life, and we both know how hard it is to effectively use a firearm against another human being, especially a handgun. Even some of the best-trained police officers and soldiers can’t do it very well. Aside from all the theory, are you really comfortable being surrounded by armed, largely untrained civilians?


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