Gun Control, People Control and Our Tired Old Constitution

January 22nd, 2013

By Dan Miller

Part I

Although it does not reflect modern Librul thinking, the Second Amendment is co-equal with the rest of the Bill of Rights in guaranteeing the rights of a free people. Infringement of any part of the Bill of Rights can easily lead to infringement of all.

Assault rifle

Legal background

The Second Amendment provides,

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. (Emphasis added.)

Nevertheless, the Senate’s marginal note adjacent to the text of the Second Amendment states,

Whether this provision protects the individual’s right to own firearms or whether it deals only with the collective right of the people to arm and maintain a militia has long been debated.

However, in District of Colombia v. Heller (2008) the Supreme Court in a majority (5:4) opinion by Mr. Justice Scalia held that the Second Amendment guarantee is not merely a collective one for militias. Justice Scalia and the majority concluded — based on pre-Second Amendment British and American laws, experiences under those laws, language as used at the time of the adoption of the Second Amendment, the text of that Amendment and constitutional history — that the Second Amendment guarantees the rights of individuals and not only of organized militias, to keep and bear arms. Although Heller directly involved only handguns, not rifles or other firearms, it is clear that reasoning of the majority opinion was far more inclusive.

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. (Emphasis added)

The opinion states further that convenience in governing does not trump constitutional guarantees.

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. 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. (Emphasis added.)

Problems with Heller

Unfortunately, the majority opinion contains lots of verbiage unnecessary in support of its decision on the case before it. Such excess verbiage is referred to as dictum (the plural is “dicta“), language extending beyond the issue before the Court and unnecessary to its resolution. Although of variable authority, dicta are not binding as precedent. The majority opinion also has several apparent contradictions which, combined with excess verbiage, seem to provide significant latitude for “gun control.” An article at the National Journal suggests that there is substantial wiggle room for that.

Many of the apparent inconsistencies are more apparent than real. For example, the Court states in dicta that

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179.

The case before the Court did not involve the mental or other qualifications properly required for gun ownership or possession. Nor did it deal with firearm possession in “sensitive places” or permissible conditions or qualifications on their sale. Rather, the case involved a District of Columbia law strictly regulating possession and storage of handguns in private homes. The law essentially made it impossible to use such handguns for immediately necessary defensive purposes.

Although the phrase “at the time” might seem confusing, the decision presumably means contemporaneously with the dispute before a court rather than at the time when the Second Amendment was adopted. Otherwise, it would be inconsistent with this statement also quoted above, “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” (Emphasis added.)

The majority opinion also spoke of “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.'” (Emphasis added.)  Many commonly used things — including kitchen knives, scissors and the like — can be used as weapons and are, by their very nature, “dangerous” if handled or used improperly. That is equally true of both handguns and long guns, and the Court did not even hint that handguns are prima facie impermissibly “dangerous.” By using the conjunctive “and” rather than the disjunctive “or,” the Court presumably meant that the prohibition can properly apply only to weapons that are both impermissibly dangerous and unusual. Some light is thrown on “unusual weapons” here:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. (Emphasis added.)

The highlighted language appears to permit the banning of weapons that are “highly unusual in society at large.” (Emphasis added.) Although erroneously referred to by some as “assault weapons” analogous to automatic weapons such as the M16, semi-automatic weapons are commonly owned and used by civilians who keep and bear firearms. However, the suggestion that even automatic firearms such as M16s may be prohibited for civilian use seems inconsistent with this statement from the majority opinion:

the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. (Emphasis added.)

Whatever else may be said about them, M16s and some other automatic firearms are customarily carried and used by individuals and hence are “bearable” withing the meaning of the Second Amendment. Some of our Librul friends may consider them “unbearable” in a very different sense, but that’s not what the Court was talking about.

Chief Justice Roberts along with Justices Kennedy, Thomas and Alito joined in the Court’s opinion. Mr. Justice Stevens authored a dissent, in which Justices Souter, Ginsburg and Breyer joined, opining to the contrary. Mr. Justice Breyer authored a separate dissent in which the other dissenting justices joined. Dealt with extensively in the majority opinion, the dissents can be read here.

The Court’s decision in Heller, including its dicta and possible inconsistencies on how Government might be able to engage in gun control consistently with the Second Amendment, remains viable for the present. However, considering the current composition of the Court and compositional changes likely to be made during President Obama’s second term, more may remain of the gun control dicta and possible inconsistencies than of the holding in Heller. Restricting the Second Amendment to organized militias, ancient weapons or otherwise elevating governmental convenience — or even governmentally encouraged public sentiment in favor of gun control — over the Second Amendment’s clear meaning — “the right of the people to keep and bear Arms, shall not be infringed” — would be a dangerous move toward tyranny. Such a move could likely be replicated in contexts well beyond the Second Amendment.

I will try to deal with the Bill of Rights more generally as well with as the judicial process in Part II, probably to be published tomorrow. Meanwhile, here are some excellent quotes from a few of the Founding Fathers.

James Monroe “No free man shall ever be de-barred the use of arms. The strongest reason for the people to retain their right to keep and bear arms is as a last resort to protect themselves against tyranny in government.”

George Washington  “Firearms stand next in importance to the Constitution itself. They are the American people’s liberty teeth and keystone under independence.”

Benjamin Franklin “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” — reply of the Pennsylvania Assembly to the governor, November 11, 1755. (Emphasis added.)

There are more at the link.

Creating popular sentiment favorable to gun control

Might a shift in popular sentiment on gun control and “assault weapons” (whatever they may be), encouraged by governmental activity stimulated by occasional crises “too good to waste,” sway a court to approve major infringements on the Second Amendment? That seems possible even with the Court as now composed. A substantial change in Supreme Court composition, likely during President Obama’s new term, seems likely to bring increased gun control, less deference to the Bill of Rights in general and hence less freedom.

During his January 21st inaugural address, President Obama called upon his people to engage in “collective action” to meet the challenges of changing times.

“We have always understood that when times change, so must we; that fidelity to our founding principles requires new responses to new challenges; that preserving our individual freedoms ultimately requires collective action,” he said, neatly summarizing the ideological underpinnings of modern American liberalism. (Emphasis added.)

The American Revolution was carried forward through “collective action,” by people who wanted to be free of governmental tyranny — not by those who wanted more of it. Perhaps there are fewer who understand and prefer freedom to tyranny now. In any event, many of President Obama’s ardent supporters seem likely to accept tyranny in exchange for relief from the pesky problems of personal responsibility; without personal responsibility there can be precious little freedom. I therefore wonder what President Obama meant by “collective action.” Mike at Make an Effort had this thought:

The only Institution that can threaten our Liberty is the Government. So what are you trying to say here? What kind of “Collective” activity do you think is required to keep the government from infringing on our Individual Liberty?

Or … since you stated that “we all define Liberty differently”, are you talking about the Liberty of Government to do whatever it wishes?  If so, Mr. President, how do you define Tyranny?

Perhaps this may suggest an answer to Mike’s probably rhetorical question.


It’s MY Second Coming! Mine! All Mine!

According to Mark Levin, a list is being prepared.

“I don’t think Obama knows exactly what he’s going to go for in his second term,” Levin said, “as he will look for opportunities to exploit as events unfold.

I am sure they’ve drawn up a partial a list, and we already know that it includes, but is not limited to, gun control; attacks on the First Amendment such as religious liberty; amnesty for illegal aliens; union expansion; institutionalizing Obamacare; institutionalizing voter corruption; de-industrialization via the EPA; destroying the capitalist-based economy via tax increases, smothering regulations, massive deficit spending, and endless borrowing; and hollowing out our military; etc.

This will effect all of us. It will do extreme damage to the nation in many respects. I think Obama sees himself as correcting historic wrongs in this country, as delivering the fruits of the labor of other people to people who he believes have historically been put upon.

Oh well. Ben Shapiro of Breitbart, author of the article quoting Mr. Levin, continues,

I think there’s a lot of perverse thinking that goes on in his [President Obama’s] mind, radical left-wing thinking. He was indoctrinated with Marx and Alinksy propaganda.  You not only see it in his agenda but in his words, class warfare; degrading successful people unless, of course, they help finance his elections, causes, and organizations; pretending to speak for the so-called middle class when, in fact, he is destroying their jobs, savings, and future.  Obama’s war on our society is intended to be an onslaught in which the system is overwhelmed.”

How to fight that agenda? Levin said the answer certainly doesn’t lie in the current Republican Party leadership. “I think the Republican Party, its apparatus, its so-called leadership, the parasitic consultants, represent an institution that is tired, old, almost decrepit, full of cowardice and vision-less.

It has abandoned the Declaration of Independence and any serious defense of constitutional republicanism.  The Democrat Party is now a radical 1960s party; it’s the anti-Constitution, anti-capitalism, anti-individual party.  It largely controls the federal government, including the massive bureaucracy and much of the judiciary, what I call the permanent branches of the federal government. (Emphasis added.)

The Democrat Party represents the federal government, and the federal government expands the power of the Democrat Party.  They’re appendages of each other.

On the other hand, the GOP today stands for capitulation, timidity, delusion — so mostly nothing.  Republicans may speak of the Constitution, limited government, low taxes, etc., but what have they done about them?  Next to nothing if not nothing.

If enough want more Government and less freedom, they along with the rest of us will get it, in spades.

Did I remember to wish everyone a Happy New Year? If I did, I may belong in a lunatic asylum.

(This article was also posted at Dan Miller’s Blog.)

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One Response to “Gun Control, People Control and Our Tired Old Constitution”

  1. Opinion Forum » The Bill of Rights and Constitutional Interpretation |

    […] Part I dealt with guns and the Second Amendment. Part II dealt mainly with the First Amendment. This Part III looks at the origins and purposes of the Bill of Rights and questions the direction in which our nation is headed. […]

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