Endangered: The Constitution Part 4

Mark Baisley
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Posted: Apr 14, 2013 12:01 AM

The Second of our Bill of Rights reads, “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.”  Some understanding of the Founding Father’s lexicon is called for to gain a full appreciation for this American birthright, better known as The Second Amendment.

In 2008, the United States Supreme Court issued a landmark decision after reviewing the challenge to a set of gun control laws in the District of Columbia.  I greatly appreciate this ruling and most of the accompanying majority opinion, known as District of Columbia versus Heller.  This opinion provides a rich resource for understanding the 18th Century intent of the Second Amendment and how it is holding up to 21st Century challenges.  For the full opinion of the court, see http://www.nraila.org/media/PDFs/HellerOpinion.pdf.

Justice Antonin Scalia authored the five-to-four majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas and Alito.  The Heller opinion wisely explored the original meanings of the anachronistic terms: “... the most natural reading of ‘keep Arms’ in the Second Amendment is to ‘have weapons.’”  Also,“At the time of the founding, as now, to ‘bear’ meant to ‘carry.’”

While the opinion did not attempt to clarify the word “infringe,” Merriam-Webster defines it as meaning to encroach upon, defeat or frustrate.  A modern restating of the second half of this amendment to the United States Constitution might be, “the right of people to have and carry weapons shall not be encroached upon.”

Gun control advocates frequently emphasize the first half of the Second Amendment in an attempt to get a foothold for their intentions.  By interpreting “A well regulated Militia, being necessary” as a conditional statement, such apologists argue that citizens only have a constitutionally guaranteed right to possess a weapon if they are a member of the military (which is their interpretation of the term militia).  The District of Columbia, in defense of its strict gun control laws being challenged, specifically argued that the Second Amendment right to bear arms only applies to a militia context.  This contention was neatly settled by the Heller decision:

“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. ... The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”

The opinion adds that, “the adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.”  Also,“The phrase ‘security of a free state’ meant ‘security of a free polity.’”

But the “prefatory clause” is not to be dismissed.  As revealed by the court’s historical study, the Founding Fathers intended to preserve this right in the context of defending against an imperious federal government.  The very framers of the Bill of Rights had recently defeated the uniformed military of Great Britain with an “irregular army” comprised of everyday Americans; farmers, lawyers, preachers and the like.  This was the militia; a reserve unit in each state defined as every capable male between the ages of 18 and 45.  They were required to maintain their own personal equipment, including “a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges.”

Citizens were nervous about allowing their newly formed federal government to maintain a standing army, frequently citing the history of domestic oppressions within Europe and the Roman Empire.  Siding with this concern in Federalist Paper Number 8, Alexander Hamilton warned of, “disciplined armies, distinct from the body of the citizens, inseparable companions of frequent hostility.”

The new Americans accepted the necessity of maintaining a military capable of immediate responses to foreign threats.  The recently ratified Constitution authorized a standing Army and Navy, naming the President as Commander in Chief.  But the ultimate force was to come from the citizens themselves; a militia that was to remain prepared and in reserve, ready to leave their personal lives and respond en masse to a persistent threat.  The Constitution placed the President in charge “of the Militia of the several States, when called into the actual Service of the United States.” 

The Heller ruling confirms that the first half of the Second Amendment, “was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. … the threat that the new Federal Government would destroy the citizens’ militia by taking awaytheir arms was the reason that right … was codified in a written Constitution.”

So, a modern translation of the entire amendment may read, “Disciplined, trained, and well-armed citizens being necessary to maintain freedom, the right of people to have and carry weapons shall not be encroached upon.”

The court also made specific decisions in the Heller case that imply constructive guidance for state and local lawmakers.  The court warned that prohibitions on classes of weapons such as handguns “would fail constitutional muster.”  They further ruled that “the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.”  The court ordered that the District of Columbia not withhold issuing a license to carry for someone who is not otherwise disqualified, as a felon for instance. 

The majority opinion allowed for justifiable restrictions on certain individuals following due process of law:  “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, ...”

The opinion then takes an unfortunate turn mid-sentence:  “... 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. [United States v.] Miller’sholding that the sorts of weapons protected are those ‘in common use at the time’ finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

It is unfortunate that the court left such a broad opening for ambitious legislators to impose their preferred definition of “dangerous and unusual weapons.”  These might include magazine capacities and hollow-point bullets.  The straightforwardness of “shall not be infringed” allows no wiggle room for political correctness and I wish that Scalia would have included that assertion.

It is understandable that America is engaged in a season of nationwide soul-searching in light of several recent incidents of mass killings with the use of guns.  We owe it to ourselves to ask why this behavior has arisen and how it can be curtailed.  Several societal factors may be contributing to this dreadful phenomenon; violent first-person video games, perhaps? The emergence of a jihad culture? The expulsion of prayer and Biblical principles from the public square? The hands-off policy for the mentally ill?

Statists will leverage the deaths of innocent victims to advance the strongest expression of their agenda; that citizens should fear the government rather than the preferred opposite condition.  The giveaway to their plan is that weapon restrictions are only proposed against citizens (the militia) and never offered as an equal restriction on domestic government troops.

Every mass murder is horrific and unacceptable.  But for every Aurora Theater, there is a Kent State.  And for every Newtown, Connecticut there is a Waco, Texas.  Some rogue citizens have inexcusably and cruelly slaughtered dozens of innocent people.  But the top ten massacres in history, from thousands to millions, were committed by governments against unarmed citizens.  There is neither righteousness nor sagacity in encroaching upon the natural rights of three hundred million honorable Americans in order to prevent those with mental health challenges from possibly acting up.

The debate over gun control has necessarily become the line in the sand in America’s flirtation with fascism.  And yes, this quandary is difficult -- which is why the founding fathers settled it for us a-priori.  Perhaps the most resonant statement from the Heller opinion is this: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”

Next week: Amendments Three through Eight

This article is the fourth in a series on the Bill of Rights in the United States Constitution.  For the complete set, see http://finance.townhall.com/columnists/markbaisley/